Appendix — Hartman v. Moore
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Supreme Court, U.S.
() FILED
O4149 5 MAY 9 - 2005
No. OFFICE OF THE CLERK
In the Supreme Court of the Gnited States
MICHAEL HARTMAN, ET AL., PETITIONERS
Vv.
WILLIAM Moork, JR.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI
PAUL D. CLEMENT
Acting Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
DAN HIMMELFARB
Assistant to the Solicitor
General
BARBARA L. HERWIG
MATTHEW M. COLLETTE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
aS
g GEST AVAILABLE COPY ji
TABLE OF CONTENTS
Appendix A (court of appeals opinion, filed
Nov. 9, 2004) .. ; la
Appendix B (district court memorandum opinion,
filed Aug. 30, 2004) . 32a
Appendix C (district court order, filed Aug. 5, 2008) ...........0+. 42a
Appendix D (court of appeals opinion, filed
June 2, 2000) . 43a
Appendix E (district court memorandum opinion and
order, filed Feb. 5, 1998) , 59a
Appendix F (court of appeals opinion, filed
Sept. 22, 1995) 112a
Appendix G (district court memorandum opinion and
order, filed Sept. 24,1993) 129a
Appendix H (district court memorandum order,
filed Sept. 21, 1992) » 52a
Appendix I (court of appeals order, filed
Jan. 31, 2005) . 166a
(I)
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 03-5241
WILLIAM G. Moork, JR., APPELLEE
v.
MICHAEL HARTMAN, ET AL., APPELLANTS
Argued: Sept. 15, 2004
Decided: Nov. 9, 2004
Before: SENTELLE and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit J udge.
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, 102
S. Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In this case,
appellee William G. Moore, Jr., claims that government
officials—in particular six postal inspectors—pursued
criminal charges against him in retaliation for his politi-
cal activities. The postal inspectors argue that even
though the criminal charges against Moore were dis-
missed, they enjoy qualified immunity because probable
cause supported the prosecution. At the time of
(la)
2a
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 violated this standard, we reject
the inspectors’ immunity defense and affirm the district
court’s denial of summary judgm=nt on this issue.
In the mid-1980s, William G. Moore, Jr., served as
CEO of Recognition Equipment, Inc. (“REI”), a com-
pany 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 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 + 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 + 4—announced in late 1983
that the USPS would stick with single-line optical
character readers (“SLOCRs”) instead of using REI’s
product.
3a
Zip + 4, however, was politically controversial. “Bu-
reaucratic arrogance,” one senator called it. Another
urged the USPS to “Zap the ZIP!!” In December 1981,
the House Committee on Government Operations ac-
cused 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 tes-
timony that prohibiting Zip + 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 + 4 in July 1981
and barred the USPS from making the nine-digit codes
mandatory.
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 + 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 in-
fluence. Several members of Congress pressed REI’s
case with the USPS Board of Governors, and Repre-
sentative Martin Frost, working closely with Moore,
introduced legislation (later withdrawn) to foree 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 rather than MLOCRs exceeded one million
dollars a day. The OTA report attributed the procure-
4a
ment of SLOCRs to unrealistic expectations for Zip + 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
Governors voted in July 1985 to make a “mid-course
correction” and switch to multi-line technology. Al-
though 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 connec-
tion 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 con-
nection with these two schemes, Voss, Gnau, and
Marcus pleaded guilty to criminal charges, while
Spartin accepted immunity in exchange 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
5a
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 sug-
gest the Defendants knew of the illegal payoff scheme,”
id. at 596, the district court concluded, “The govern-
ment’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 govern-
ment 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
obtaining 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, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971), against
the prosecutor and six postal inspectors (one of whom is
now deceased). Shortly thereafter, the Moores filed a
second complaint, also in the Northern District of
Texas, seeking 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 immunity, threw out a Fifth
Amendment abuse-of-process claim against the
inspectors. Moore v. Valder, No. 91-2491 (N.D. Tex.
6a
Sept. 21, 1992). The court transferred the remaining
claims to the U.S. District Court for the District of
Columbia, 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 retalia-
tory 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 prosecution 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 ap-
pealed a second time, and we affirmed the district
court’s ruling except as to one FTCA claim not relevant
here. Moore v. United States, 213 F.3d 705 (D.C. Cir.
2000) (“Moore IT”).
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 sup-
ported Moore’s prosecution. In the alternative, the
inspectors argued that the record contained insufficient
evidence of retaliatory motive. The district court de-
nied the inspectors’ motion in the following one-para-
graph 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
7a
material facts in dispute. The most significant are
the facts surrounding the presentation of evidence
to the grand jury and the disclosure of grand jury
testimony 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.
Il.
Before addressing the merits of the inspectors’ quali-
fied immunity claim, we must consider whether
we have jurisdiction 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 immediate appeal
under that statute despite the absence of a final judg-
ment. See Mitchell v. Forsyth, 472 U.S. 511, 524-25,
530, 105 S. Ct. 2806, 2814-15, 86 L. Ed. 2d 411 (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 pre-
vent. See id. at 525-30, 105 S. Ct. at 2814-18; Jnt’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 denial of
qualified immunity] turns on an issue of law.” Mitchell,
472 U.S. at 530, 105 S. Ct. at 2817. Pointing out that
many facts in the record are disputed, Moore argues
that the inspectors cannot establish a “purely legal”
issue subject to interlocutory appeal, id. at 530, 105
S. Ct. at 2817, unless they concede the plaintiff’s view
sa
of the facts—something Moore says the inspectors re-
fuse to do. Accordingly, Moore argues, we lack juris-
diction to entertain the inspectors’ appeal.
We have little trouble rejecting Moore’s argument.
Although in one interlocutory case where we found
jurisdiction, we did describe the facts as “effectively
conceded,” see Farmer v. Moritsugu, 163 F.3d 610, 614
(D.C. Cir. 1998), we never suggested that such a con-
cession was required for jurisdictional purposes. In
fact, such a requirement would conflict with Behrens v.
Pelletier, 516 U.S. 299, 116 S. Ct. 834, 183 L. Ed. 2d 773
(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 material
issues of fact. See id. at 312-13, 116 S. Ct. at 841-42.
While noting in reliance on Johnson v. Jones, 515 U.S.
304, 115 S. Ct. 2151, 182 L. Ed. 2d 238 (1995), that
“determinations 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,” performing “a
cumbersome review of the record” if necessary.
Behrens, 516 U.S. at 313, 116 S. Ct. at $4z (quoting
Johnson, 515 U.S. at 319, 115 S. Ct. at 2159). Once the
facts are established under that standard, an immunity
claim like the inspectors’ raises “the purely legal
question of whether or not an official’s actions violate
clearly established law,” no less than in an appeal based
9a
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.
Though neither party raises the issue, we also note
that our statement in Moore J that “Moore’s retaliatory
prosecution claim . . . does allege the violation of
clearly established law,” 65 F.3d at 196, neither de-
prives 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
appealed a denial of the same claim on a motion to
dismiss. See Behrens, 516 U.S. at 309-11, 116 S. Ct. at
840-41. 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]
question 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. Jd. at 309, 116
S. Ct. at 840. Furthermore, as we explained 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
IT, 213 F.3d at 709. Accordingly, whether Moore’s
cause of action requires lack of probable cause remains
a live issue.
10a
Ill.
As the Supreme Court has recognized, although dam-
ages 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 legitimate official
action. See Harlow, 457 U.S. at 814, 102 S. Ct. at 2736.
Striking “a balance between the evils inevitable in any
available alternative,” id. at 813, 102 S. Ct. at 2736,
qualified immunity protects “government officials
performing discretionary functions . . . 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, 102 S. Ct. at 2738. Underlying this
doctrine is the basic principle of fair notice: officials may
be held liable if “[t]he contours of the right [are] suffi-
ciently clear that a reasonable official would understand
that what he is doing violates that right,” Anderson v.
Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97
L. Ed. 2d 523 (1987); otherwise, the unfairness of hold-
ing officials responsible on grounds they could not have
anticipated trumps the individual’s interest in vindi-
cating transgressed rights. See id. at 641, 107 S. Ct. at
3039; Crawford-El v. Britton, 523 U.S. 574, 590-91, 118
S. Ct. 1584, 1592-93, 140 L. Ed. 2d 759 (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 in-
quiry, considering first what the law is, and only then
whether that law was clearly established. See Wilson v.
Layne, 526 U.S. 603, 609, 119 S. Ct. 1692, 1696, 143
L. Ed. 2d 818 (1999). Were the procedure otherwise,
lla
constitutional avoidance might lead courts to rest on
findings of uncertainty without first clarifying 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, 118 S. Ct. 1708, 1714 n.5, 140 L. Ed. 2d 1048 (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,
107 S. Ct. at 3039, defining the right “at the appropriate
level of specificity” is critical. Wilson, 526 U.S. at 615,
119 S. Ct. at 1700; 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 “funda-
mentally” or “materially similar” circumstances, see
Hope v. Pelzer, 536 U.S. 730, 739, 741, 122 S. Ct. 2508,
2515, 153 L. Ed. 2d 666 (2002), the right can be con-
sidered clearly established only if the unlawfulness was
“apparent” in light of pre-existing law, see Anderson,
483 U.S. at 640, 107 S. Ct. at 3039. The “salient ques-
tion,” then, is “whether the state of the law [at the rele-
vant time] gave [the officials] fair warning that their
alleged treatment of [the plaintiff] was unconsti-
tutional.” Hope, 536 U.S. at 741, 122 S. Ct. at 2516.
In this case, Moore seeks to vindicate his right to be
free from prosecution undertaken in retaliation for
First Amendment activity. The inspectors, though
conceding that right generally exists, see Crawford-El,
523 U.S. at 592, 118 S. Ct. at 1593 (describing the
“general rule” that “the First Amendment bars retalia-
tion for protected speech” as one that “has long been
clearly established”), urge us to define the claim more
specifically. Insisting the record shows that they acted
12a
with probable cause, the inspectors argue that what
they were doing could violate a clearly established right
only if the First Amendment prohibits retaliatory pro-
secution even when probable cause exists. Based on
cases from other jurisdictions requiring 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 sus-
picion.
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 prose-
cution cause of action require a lack of probable cause?
—has already been answered by this circuit. In Hay-
nesworth v. Miller, 820 F.2d 1245 (D.C. Cir. 1987), we
described the “essential elements of a retaliatory-prose-
cution claim” as follows:
The Court should consider whether the plaintiffs
have shown, first, that the conduct allegedly retali-
ated against or sought to be deterred was consti-
13a
tutionally 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
preponderance of the evidence that it would have
reached the same decision as to whether to prose-
cute 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 plaintiff 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 ore
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 enforce-
ment 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 reading Haynesworth, we disagree. The
relevant passage reads as follows:
l4a
We share the conviction . . . that retaliatory prose-
cution unconstitutionally impinges on the right of
access to the courts guaranteed by the First
Amendment. Haynesworth alleged that he was
charged with disorderly conduct solely because he
refused to release his civil claims against the arrest-
ing officers. That averment, we think, partakes
from the circumstances enough substance to entitle
him to proceed directly under the First Amendment
for damages.
Haynesworth, 820 ¥.2d at 1257 (footnotes omitted).
Because this conclusion—that plaintiff had stated a
claim for retaliatory prosecution—required some vision
of what the claim entailed, Haynesworth’s articulation
of the elements was central to its holding. True enough,
plaintiff described his prosecution 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
immunize 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, 118
S. Ct. 1584, 140 L. Ed. 2d 759 (1998), in which plaintiff
alleged that police pressed charges to deter the vindi-
cation of civil rights, we noted “the at least arguable
l5a
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. Jd.
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. Dem-
onstrating 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 IT, 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 En-
terprise, 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 F.3d
955, 961 (10th Cir. 2001). Our approach, moreover, com-
ports with the Supreme Court’s framework in Mt.
Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 2d 471
(1977). In that case, which involved an untenured
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 consti-
tutionally protected conduct to have been a “motivating
l6a
factor” in the firing, the burden would shift to the board
to establish that “it would have reached the same
decision . . . even in the absence of the protected con-
duct.” Jd. at 287, 97 S. Ct. at 576. While the criminal
context, of course, involves considerations of prose-
cutorial discretion absent in a school employment de-
cision, 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 ap-
proach, so we think it useful to flesh out the reasons
why the existence of probable cause should not neces-
sarily preclude liability. To begin with, probable cause,
requiring no more than “information sufficient to war-
rant 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
quotations and alterations omitted), is designed for the
ordinary arrest or prosecution where courts may pre-
sume that government officials exercised their discre-
tion 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 presume
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 Amend-
17a
ment to prevent only baseless prosecutions, i.e., prose-
cutions lacking probable cause. As the inspectors 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 punishing free speech. To be sure, prose-
cutorial discretion is a “core executive constitutional
function,” United States v. Armstrong, 517 U.S. 456,
465, 116 S. Ct. 1480, 1486, 134 L. Ed. 2d 687 (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 pro-
tected statutory and constitutional rights.” Wayte v.
United States, 470 U.S. 598, 608, 105 S. Ct. 1524, 1531,
84 L. Ed. 2d 547 (1985) (internal quotations and cita-
tions 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.” Jd.
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 prose-
cution for bad faith or other ill motive,” the inspectors
18a
argue that lack of probable cause should be required in
the retaliatory prosecution context because it affords
“a ready-made (but not insurmountable) objective
criterion as a first step in assessing prosecutorial dis-
cretion.” (Appellant’s Br. at 29-30.) Yet the two de-
fenses the inspectors 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, 116 S. Ct. at 1487. But once that showing has
been made, the accused has a defense to the charges.
See United States v. 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 inspec-
tors’ theory, selective prosecution doctrine supports
our view that constraints on prosecutorial motive may
at times override the interest in punishing objectively
culpable conduct.
As for vindictive prosecution, that defense entails a
framework much like the one Haynesworth adopted for
retaliatory prosecution: if evidence indicates a “rea-
sonable likelihood” that the government acted “to
punish a defendant for exercising his legal rights,” a
presumption of vindictiveness arises, which the govern-
ment 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
19a
an obligation on the government’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 jus-
tification 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 pro-
tects officers who comply with an objectively reason-
able 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, 118 S. Ct. at 1594-95. Consistent
with this reasoning, we see no reason why compliance
with the objective probable cause standard should bar
scrutiny of subjective motivations here. Other con-
straints identified in Crawford-El—procedural mecha-
nisms for limiting discovery and facilitating summary
judgment, as well as the opportunity to show the
prosecution would have happened anyway, id. at 592-
93, 597-601, 118 S. Ct. at 1593-94, 1596-98—may screen
out baseless motive claims without precluding recovery
in cases where officers pursue retaliatory charges they
would not have undertaken but for their unconsti-
tutional animus.
In sum, the law of this circuit, as expressed in
Haynesworth, 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 Bivens
20a
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
circumstance, 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. Air Line 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 pur-
sued his indictment. The inspectors referred explicitly
to Moore’s political activities in two reports summariz-
ing 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 Congress
b. Frost amendment to freeze USPS appropria-
tions bill.
2la
Similarly, a “Details of Offense” memorandum sub-
mitted 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 trans-
actions that related to Voss’ official influence but
were independently initiated by Moore and Reedy.
¢ 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 re-
venue until MLOCRs were purchased from REI.
¢ During the period August 1985 to April 1986,
REI continued to undermine the competitive
testing program [an aspect of OCR procurement]
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 pro-
tection—as grounds for prosecution, even though these
activities were “independent of Voss/GAI actions” (pre-
sumably a reference to the alleged conspiracy). Con-
sistent with this view of the inspectors’ motives,
subpoenas in the REI investigation targeted speech
and lobbying activity, seeking, among other things,
“articles placed with trade publications and reporters,”
“interviews with journalists and reporters,” “meetings
22a
with United States Congressmen,” and “consulting ser-
vices 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 supporting 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 conspiracy related to Moore only
indirectly. Though Voss, the corrupt 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, infor-
mation 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. /d.
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
inspectors 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”
23a
Another entry dated April 29, 1985 again mentions
Gnau and Voss, while also referring to Zip + 4; to John
McKean, the Chairman of the USPS Board of Gover-
nors; to Electrocom Automation, Inc., a competing
producer of scanning technology; and to J ames Jellison,
a top USPS official:
USPS—prudent to do contingency planning
e ZIP + 4 not going well
¢ Consultant—wired (Peter Voss)
¢ Inside vs outside control
¢ 100 systems—$150m-$250m
¢ McKean—West Point/airborne/Gonzaga HS
¢ Upgrade at Electrocom
¢ Jellison °
Elsewhere, the notes appear to refer to information
from a “closed session” of the USPS Board of Gover-
nors, 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 interviews:
Critical Incident ¢ Final “fishing trip”
e Lawyer in DC—late for hearing—Martin Luther
King—no copy of transcript
(plea arrangement) —date of plea
—conversation between judge +
_ US. Attorney
¢ lot of homework
¢ drive a wedge between people (intimidate)
e answer “I don’t know, I really can’t remember”
24a
e excitable
¢ all kinds »f scenarios
e ask same juestions over and over
¢ don’t show him how smart you are
e don’t relax
e long interrogation (tough questions at end)
e 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.
Reading the notes in Moore’s favor, however, we
think it at least as plausible that the notes reflect per-
fectly 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” statement could mean nothing more than that
he cautioned employees 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
notebook was missing thirty-six of its eighty pages, and
25a
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
: - met and developed a story to cover up their
involvement,” the inspectors suspected that REI offic-
ijals 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 pro-
duced other evidence (including at least one phone
message) revealing contacts between Moore and Voss.
As for the notebook, Moore explained during his de-
position 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
lacking any evident reason to protect Moore, not one of
the 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 extraordinary pressure—at one point as
many as ten inspectors surrounded 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 . . . or was being paid,”
Spartin offered only that other witness statements the
inspectors had shown him suggested Moore’s guilt:
26a
“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 testimony 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’ evi-
dence, the U.S. Attorney’s Office hesitated to indict—
even though the inspectors urged it to do so. “The facts
underlying this [proposed] indictment are complicated,
and the evidence is entirely circumstantial,” the Chief
and Deputy Chief of Special 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—incorrectly, as it turned
out—that “there is enough evidence to get by an MJOA
{motion for judgment of acquittal],” the memo de-
scribed the chances of convicting Moore, Reedy, and
REI as “questionable.” As to Moore specifically, the
two Assistant United States Attorneys observed:
[None of the evidence shows direct knowledge by
Moore of the payments to Voss through GAI. Even
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
investigation, disagreed with the memo, stating in a
response that “hundreds, if not thousands, of pieces of
direct evidence . . . show that the defendants are
27a
guilty beyond a reasonable doubt.” N evertheless, 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 AUSAsg’ memorandum,
Clauson wrote, “Frankly, Jay, I am disappointed by
your office’s failure to aet on this matter and the series
of broken promises from your staff (review committee)
relative to the date and nature of their recommenda-
tion.” 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 rea-
sonable trier of fact to conclude that when the U.S.
Attorney’s Office finally decided to indict, the inspec-
tors 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 inspec-
tors refused to let him say any such thing, despite
protracted negotiations with Bray’s lawyer. Valder
apparently circled portions of Bray’s draft statement
and wrote “don’t reveal.” The record also suggests that
28a
the inspectors and Valder showed the prepared grand
jury statements to Spartin during his polygraph exami-
nation, and that they shared investigative materials—
allegedly including grand jury evidence—with Bolger’s
ousted successor as PMG, Paul Carlin.
Considering all this evidence together and inter-
preting 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 + 4. The evidence of retaliatory motive comes close
to the proverbial smoking gun: in addition to subpoe-
nas 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 con-
spirators implicate Moore, but even the U.S. Attorney’s
Office concluded that, at best, Moore “probably” knew
about the charged conspiracies, and even that con-
clusion rested on the assumption that Reedy likely
shared with Moore his misgivings about Gnau and
Voss—an assumption the record fails to substantiate.
Moreover, the U.S. Attorney’s Office warned that the
case would be “complicated” and “consume significant
resources”—considerations that, under normal circum-
stances, might weigh against prosecuting a marginal
case. Applying the Haynesworth test, we believe this
combination of factors—complexity and expense plus
strong indications of retaliation 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 sum-
29a
mary 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 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 actionable under Haynes-
worth constrains us to hold that Moore has alleged the
violation of a clearly established right.
The inspectors’ argument to the contrary misappre-
hends 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, Haynes-
worth 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, 107 S.Ct. at 3039; Butera,
235 F.3d at 646. Neither Haynesworth’s purported 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.
30a
Nor did the decisions of other courts give the govern-
ment 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 US. at
617, 119 S. Ct. at 1700. 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 ambiguity, 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 1055, 1060
(11th Cir. 1987); see also Redd, 140 F.3d at 1383. In
contrast, and also at the time of Moore’s indictment, the
Fifth Circuit, though later embracing the Third Cir-
cuit’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 retributive 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 investi-
gation,” an investigation undertaken “with the sub-
stantial motivation of retaliating” against protected
speech may violate the First Amendment). Against
this ambiguous background—at best, two circuits im-
munizing prosecutions based on probable cause and one
apparently not—Postal Service officials could not rea-
3la
sonably have read Haynesworth to require lack of prob-
able 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, 122 S. Ct. at 2516, “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;
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 pro-
ceedings consistent with this opinion.
So ordered.
32a
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 92-2288 (RMU)
WILLIAM G. MOORE, JR., ET AL., PLAINTIFFS
v.
MICHAEL HARTMAN ET AL., DEFENDANTS
Aug. 30, 2004
MEMORANDUM OPINION
URBINA, District Judge.
DENYING THE DEFENDANT’S MOTION FOR A RULING;
DENYING THE DEFENDANT’S MOTION FOR
RECONSIDERATION
I. INTRODUCTION
This matter . es before the court on the defendant
United States’ motion for a ruling on its motion to
strike and for reconsideration of Judge Norma fiollo-
way Johnson’s August 5, 2003 order denying summary
judgment to the United States.’ The defendant argues
that Judge Johnson “inadvertently” failed to rule on the
defendant’s motion to strike the plaintiff’s statement of
disputed material facts prior to denying the defendant’s
motion for summary judgment. The plaintiff responds
! The Calendar Committee for the United States District Court
for the District of Columbia reassigned the case to this court in
November 2003.
33a
that Judge Johnson impliedly denied the motion to
strike by denying the defendant’s motion for s
judgment. Furthermore, the plaintiff argues that
the defendant’s request for reconsideration of J udge
Johnson’s order is a transparent attempt to reargue
points in this court that the defendant already lost in
front of Judge Johnson. For the reasons that follow, the
court denies the motion for a ruling and denies the
motion for reconsideration.
Il. BACKGROUND
The facts of the underlying case are set forth in
numerous prior opinions and the court will not recount
them in great detail here. E.g., Moore v. United States,
213 F.3d 705 (D.C. Cir. 2000); Moore v. Valder, 65 F.3d
189 (D.C. Cir. 1995). In 1989, after a district court
found insufficient evidence to support a reasonable in-
ference that Mr. Moore (“the plaintiff”) was aware of 4
scheme to defraud and steal from the United States
Postal Service, the plaintiff brought separate Bivens*
and Federal Tort Claims Act (“FTCA”) claims in the
Northern District of Texas against, inter alia, the
Assistant United States Attorney (““AUSA”) who had
just prosecuted him and the Postal Inspectors who had
assisted in the case. Valder, 65 F.3d at 191. The federal
court in Texas dismissed the Bivens claims against the
AUSA and transferred both cases to this district,
where Judge Johnson consolidated the cases for all
future purposes. Jd. at 192.
Years of litigation have whittled down the plaintiff’s
original cases to (1) a Bivens claim against the Postal
Inspectors now on interlocutory appeal on the issue of
* Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,
91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).
34a
qualified immunity, and (2) a claim against the Postal
Inspectors under the FTCA for malicious prosecution.
See Joint Status Report (Mar. 8, 2004) at 2. The court
today addresses the latter claim, on which Judge
Johnson found a sufficient dispute of material facts to
deny the defendant’s motion for summary judgment.’
Id. at 6. Normally the court would be proceeding to
trial in this case, but the defendant has asked for a
ruling on its motion to strike the statement of disputed
material facts that the plaintiff filed prior to Judge
Johnson’s decision.’ As the defendant argues, Judge
Johnson’s “by all indications inadvertent” oversight in
ruling on the motion for summary judgment without
addressing the motion to strike was “highly prejudicial
to the United States in this litigation.” Def.’s Mot. for
Ruling on Mot: to Strike and for Reconsid. (“Def.’s
Mot.”) at 10. Of course, what the defendant is really
concerned about is not whether plaintiff complied with
the local rules. “If the [cJourt considers and grants the
3 Judge Johnson held that, “[u}pon consideration of the motion
of the defendants, United States, and Michael Hartman, et al., for
summary judgment and the response thereto, the Motion for
Summary Judgment is DENIED. There are material facts in
dispute. The most significant are the facts surrounding the pre-
sentation of evidence to the grand jury and the disclosure of grand
jury testimony to a key prosecution witness.” Order (Aug. 5,
2003).
4 The plaintiff submitted this statement of material facts pur-
suant to Local Rule 7.1(h), now Rule 7(h). “Rule 7.1(h) requires a
party moving for summary judgment to provide a statement
identifying the undisputed facts that entitle it to judgment as a
matter of law, and directs the nonmoving party to respond with a
statement listing the facts ‘as to which it is contended there exists
a genuine issue necessary to be litigated.’” Waterhouse v. District
of Columbia, 298 F.3d 989, 991 n.2 (D.C. Cir. 2002) (quoting LCvR
7.1(h)).
35a
United States’ motion to strike, justice requires that
the Order denying summary judgment be recon-
sidered.” Jd. The defendant, in short, would like the
court to reconsider the government’s motion for sum-
mary judgment.
Ill. ANALYSIS
A. The Court Denies the Defendant's
Motion for a Ruling
The defendant’s request for a ruling on the motion to
strike cannot be addressed without determining
whether Judge Johnson’s order impliedly resolved that
motion. The defendant argues in its motion to strike
that the plaintiffs “lengthy [Rule 7.1(h) ] statements
are so laced with irrelevancies, rhetoric and legal con-
clusion that it is impossible to discern from them what
[the plaintiff] thinks are the material facts genuinely in
dispute.” Def.’s Mot. to Strike at 6. The plaintiff
objects to this characterization, stating that he “meth-
odically responded to each of the more than 135 para-
graphs set forth in the statements accompanying [the
defendant’s] motions for summary judgment with
specific factual contentions supported by record cita-
tions.” Pl.’s Opp’n to Mot. to Strike at 2.
Both parties now dispute whether the plaintiff's
statement of disputed facts violated Local Rule 7(h).
Much of the defendant’s argument ignores the purpose
of Rule 7(h), however, which is to “assist{ ] the district
court to maintain docket control and to decide motions
for summary judgment efficiently and effectively.”
Jackson v. Finnegan, Henderson, Farabow, Garrett &
Dunner, 101 F.3d 145, 150 (D.C. Cir. 1996). As the
court in Jackson indicated, Rule 7(h) exists to help the
judge; it “places the burden on the parties and their
ae eee ee
36a
counsel, who are most familiar with the litigation and
the record, to crystallize for the district court the
material facts and relevant portions of the record.” Jd.
at 151. Once a court rules on a motion for summary
judgment, however, Rule 7(h) has largely served its
purpose. Moreover, if the parties disagree over a Rule
7(h) submission, the court will presumably have before
it the briefing on that disagreement, as did Judge
Johnson for more than a year before she ruled on the
summary judgment motion.
Because the summary judgment stage of this case is
now over, the court is reluctant to revisit a motion
regarding a rule designed to facilitate the adjudication
of summary judginent. If the defendant had brought to
this court’s attention a misrepresentation in the plain-
tiffs Rule 7(h) statement on which Judge Johnson ex-
pressly relied, the court would have cause to address
the matter. But the defendant brings nothing to this
court’s attention that it did not bring to Judge
Johnson’s attention in its motion to strike, except for
speculation that Judge Johnson, “having been pressed
by Moore to swiftly rule on summary judgment, inad-
vertently did not consider the pending motion to |
strike.” Reply at 2.
The court therefore declines the defendant’s ir vita-
tion to speculate how Judge Johnson arrived at her
holding. Cf. Def.’s Mem. at 8-10. The court believes
that Judge Johnson was fully briefed on the defendant’s
arguments concerning the plaintiff's Rule 7(h) sub-
mission. The defendant has offered no reason for the
court to think otherwise. Accordingly, the court will
adhere to the presumption that a ruling inconsistent
with an outstanding motion impliedly resolves that
37a
motion.” The defendant’s motion for a ruling is there-
fore denied, and the court proceeds to determine
whether reconsideration is warranted.
B. The Court Denies the Defendant's
Motion for Reconsideration
Judge Johnson’s order is interlocutory because it
denied a motion for summary judgment and did not
dispose of the entire case on the merits. Johnson v.
Jones, 515 U.S. 304, 307-09, 115 S. Ct. 2151, 132 L. Ed.
2d 238 (1995). At the outset, the court thus notes that
® See, e.g., King v. Tecumseh Public Schools, 229 F.3d 1152,
2000 WL 1256899, *3 (6th Cir. 2000) (Table) (holding that entry of
summary judgment while a motion for additional discovery was
pending “should be construed as an implicit denial” of the motion
for additional discovery); Moody v. Town of Weymouth, 805 F.2d
30, 31 (1st Cir. 1986) (holding that the court implicitly denied the
plaintiff's motion to strike certain submissions because the court
“in its opinion granting defendants’ motion to dismiss, relied on
defendants’ materials”); Addington v. Farmer’s Elevator Mutual
Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981) (finding that the grant of
summary judgment for the defendant “was so inconsistent with
the plaintiff's request for leave to amend to state a new claim for
relief as implicitly to deny the motion to amend”); Wimberly v.
Clark Controller Co., 364 F.2d 225, 227 (6th Cir. 1966) (holding
that “[wJhile it is certainly the better practice to specifically rule
on all pending motions, the determination of a motion need not
always be expressed but may be implied by an entry of an order
inconsistent with granting the relief sought”). The defendant at-
tempts to distinguish cases such as these by arguing Judge
Johnson’s order did not rely on any of the materials in the motion
to strike. Reply at 4. As indicated above, however, Local Rule
7(h) facilitates the summary judgment determination. Once that
determination is made, an outstanding motion concerning Rule 7(h)
becomes less critical absent some extraordinary circumstance not
present here. Thus, the court holds that Judge Johnson’s order is
indeed inconsistent with the motion to strike and that the order
therefore impliedly resolved the motion to strike.
38a
Rule 54(b), not Rule 60(b)(6), provides the relevant
standard for reconsidering Judge Johnson’s order. See
Fed. R. Civ. P. 54(b) (stating that an interlocutory
order, on the claims or rights and liabilities of a party “is
subject to revision at any time before entry of [final]
judgment”). The distinction is important because,
although courts only reconsider under Rule 60(b)(6) in
“exceptional circumstances,” courts have more flexi-
bility in applying Rule 54(b). Fayetteville Investors v.
Commercial Builders, Inc., 936 F.2d 1462, 1470 (4th
Cir. 1991) (rejecting “vigorously” the lower court’s ap-
plication of the Rule 60 standard to an interlocutory,
Rule 54(b) determination).
Furthermore, because Judge Johnson’s order is inter-
locutory, the law of the case doctrine does not auto-
matically apply. Langevine v. District of Columbia, 106
F.3d 1018, 1022-23 (D.C. Cir. 1997). That doctrine
“posits that when a court decides upon a rule of law,
that decision should continue to govern the same issues
in subsequent stages in the same case.” Christianson v.
Colt Industries Operating Corp., 486 U.S. 800, 816, 108
S. Ct. 2166, 100 L. Ed. 2d 811 (1988) (quoting Arizona
v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 75
L. Ed. 2d 318 (1983)). “(T]he doctrine applies as much
to the decisions of a coordinate court in the same case
as to a court’s own decisions.” Jd.
The inappiicability of the law of the case doctrine
theoretically leaves the court with greater discretion to
revisit Judge Johnson’s order, but this is not to say that
district courts should take lightly reconsideration of the
orders of their colleagues. As the D.C. Circuit has
stated, “[iJnconsistency is the antithesis of the rule of
law. For judges, the most basic principle of jurispru-
dence is that we must act alike in all case of like
39a
nature.” LaShawn v. Barry, 87 F.3d 1389, 1393 (D.C.
Cir. 1996) (noting that the law of the case doctrine helps
implement this principle). Thus, although Judge
Johnson’s order is not “subject to” the law of the case
doctrine, Langevine, 106 F.3d at 1020, nothing pre-
vents the court from applying the rationales of that
doctrine to guide a Rule 54(b) decision. Virgin Atlantic
Airways v. National Mediation Board, 956 F.2d 1245,
1255 (2d Cir. 1992) (holding that “(elven if Rule 54(b)
allows parties to request district courts to revisit
earlier rulings, the moving party must do so within the
strictures of the law of the case doctrine”); ef.
Langevine, 106 F.3d at 1023-24 (quoting the proposition
in Moore’s that, in a case where the first judge likely
committed clear error, the transfer between judges
“should no more freeze prior rulings than it should re-
quire their routine reexamination”).
Indeed, courts apply a wide variety of tests to deter-
mine reconsideration under Rule 54(b).’ As the Second
® Although failure to adhere to the law of the case doctrine may
in some cases constitute abuse of discretion, adherence to the
doctrine is not mandatory. See Messinger v. Anderson, 225 U.S.
436, 444, 32 S. Ct. 739, 56 L.Ed 1152 (1912) (Holmes, J.) (noting
that the law of the case doctrine “merely expresses the practice of
courts generally to refuse to reopen what has been decided, not a
limit to their power”).
" See, ¢.g., United States v. Jerry, 487 F.2d 600, 605 (3d Cir.
1973) (interlocutory orders may be reconsidered by a district court
when doing so is “consonant with justice”); M.K. v. Tenet, 196 F.
Supp. 2d 8, 12 (D.D.C. 2001) (holding that “(rJeconsideration of an
interlocutory decision . . . is available under the standard, ‘as
justice requires’”); A & H Sportswear Co., Inc. v. Victoria’s Secret
Stores, Inc., 2001 WL 881718 (E.D. Pa. 2001) (indicating that
“[cJourts tend to grant motions for reconsideration [under Rule
54(b)) sparingly and only upon the grounds traditionally available
under Fed. R. Civ. P. 59(e)”); Gallant v. Telebrands Corp., 35
40a
Circuit has noted, “one of the bases for the [law of the
case doctrine], the desire to save judicial time, is not too
persuasive when, as here, an overruling of our previous
decision might well bring ‘the case’ to a much quicker
end than it will otherwise have[.]” Zdanok v. Glidden
Co., Durkee Famous Foods Division, 327 F.2d 944, 953
(2d Cir. 1964). In this case, a hypothetical scenario in
which the court reconsiders Judge Johnson’s order and
holds in favor of the defendant would obviously further
judicial economy because the case would be over.
However,
another consideration is applicable: where litigants
have once battled for the court’s decision, they
should neither be required, nor without good reason
permitted, to battle for it again. Perhaps the “good
sense” of [the court’s discretion of] . . . comes down
to a calculus of the relative unseemliness of a court’s
F. Supp. 2d 378, 394 (D.N.J. 1998) (resolving a Rule 54 motion by
determining whether the parties proffer supplemental evidence or
new legal theories); Neal v. Honeywell, 1996 WL 627616, *2 (N.D.
Ill. Oct. 25, 1996) (noting that such motions are “best characterized
as a common law motion for reconsideration” and applying a the
test of whether the court “has patently misunderstood a party,”
“has made a decision outside the adversarial issues presented to
the Court by the parties,” “has made an error not of reasoning but
of apprehension,” or “a controlling or significant change in the law
or facts [has occurred] since the submission of the issue to the
Court”) (quoting Bank of Waunakee v. Rochester Cheese Sales,
Inc., 906 F.2d 1185, 1191 (7th Cir. 1990) (dealing with a post-judg-
ment motion to reconsider)); see generally Motorola, Inc. v. J.B.
Rodgers Mechanical Contractors, Inc., 215 F.R.D. 581 (D. Ariz.
2003) (surveying various standards). The court additionally notes
that is has required litigants to bring motions under Rule 54
“within a reasonable period after an interlocutory order during the
pendency of the litigation.” Tax Analysts v. I.R.S., 152 F. Supp. 2d
1,5 n.4(D.D.C. 2001),
4la
altering a legal ruling as to the same litigants, with
the danger that this may reflect only a change in the
membership of the tribunal|.]
Id.
As indicated above, the defendant makes no argu-
ment now that it did not make to Judge Johnson. J udge
Johnson had ample time to weigh the arguments,
oppositions and replies on the motion for summary
judgment, the Rule 7.1 submissions and the motion to
strike. The only reason to which the plaintiffs can point
to further delay this case is that Judge Johnson felt
pressured by the plaintiff to rule on a motion and there-
fore forgot to rule on a motion to strike. Reply at 2.
The court finds this argument speculative at best. In
light of the “relative unseemliness of a court’s altering a
legal ruling as to the same litigants,” Zdanok, 327 F.2d
at 953, the court needs greater justification to revisit
Judge Johnson’s ruling than conjecture about whether
she forgot something or felt rushed. Because the de-
fendant fails to offer such justification, its motion for
reconsideration is denied.
IV. CONCLUSION
For the foregoing reasons, the court denies the
defendant’s motion for a ruling and for reconsideration.
An order consistent with this Memorandum Opinion is
separately and contemporaneously issued this 30th day
of August, 2004.
42a
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 92-cv-2288 (NHJ) (AK)
[consolidated with No. 93-cv-0324 (NHJ) (AK)]
WILLIAM G. MOORE, ET AL., PLAINTIFFS
Vv.
JOSEPH B. VALDER, ET AL., DEFENDANTS
Aug. 5, 2003
ORDER
Upon consideration of the motion of defendants,
United States and Michael Hartman, et al., for sum-
mary judgment and the response thereto, the Motion
for Summary Judgment is DENIED. There are
materials facts in dispute. The most significant are the
= facts surrounding the presentation of evidence to the
~ grand jury and the disclosure of grand jury testimony
to a key prosecution witness.
Accordingly, it is this 5th day of August, 2003,
ORDERED that Defendant’s motion for summary
judgment be and hereby is denied.
/s/ NORMA HOLLOWAY JOHNSON
NORMA HOLLOWAY JOHNSON
JUDGE
43a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Nos. 99-5197 & 99-5198
WILLIAM G. Moore, JR., APPELLANT
v.
UNITED STATES OF AMERICA, APPELLEE
WILLIAM G. Moork, JR., APPELLANT
vz.
JOSEPH B. VALDER, APPELLEE
Argued: March 13, 2000
Decided: June 2, 2000
Before: SILBERMAN, RANDOLPH, and ROGERS,
Circuit Judges
Opinion for the Court filed by Circuit Judge
RANDOLPH.
RANDOLPH, Circuit Judge:
Our first opinion in this case affirmed in part and
reversed in part the district court’s dismissal of William
G. Moore, Jr.’s complaint against a prosecutor and
postal inspectors and his complaint against the United
States. See Moore v. Valder, 65 F.3d 189 (D.C. Cir.
1995). On remand, the district court again dismissed
the claims against the prosecutor, Joseph B. Valder,
44a
and granted judgment on the pleadings in favor of the
government, rulings from which Moore now appeals.
I.
Moore’s basic grievance is that he was unjustly
prosecuted on charges concerning his dealings with the
United States Postal Service. In the early 1980s, the
company Moore headed—REI—wanted to sell the
Postal Service multiple-line scanners, but the Service
declined. Moore publicly criticized the decision. A
Postal Service governor—Peter Voss—suggested to
REI that it hire the consulting firm GAI to promote its
product. REI did so. Voss had a side deal with GAI:
thirty percent of the fees REI paid to the consulting
firm were kicked back to Voss. After their crimes were
discovered, Voss and several GAI officials plead guilty.
William A. Spartin, GAI’s president, negotiated an im-
munity deal in return for his cooperation.
Postal inspectors and prosecutor Valder, seeking to
establish that Moore and REI knew of the kickback
scheme, were told instead by each of five of the ad-
mitted conspirators, including Spartin, that no one at
REI had such knowledge. The postal inspectors later
drafted, and the prosecutor presented to the grand
jury, “witness statements” for these individuals, but
without this exculpatory information. Spartin’s refusal
to implicate Moore prompted Valder to tear up his
immunity agreement and threaten to prosecute Spar-
tin’s son. Valder and the postal inspectors showed
Spartin the government-drafted statements of the
other witnesses. (Moore alleges this disclosure was a
violation of grand jury secrecy rules.) Spartin con-
tinued to deny that he had personal knowledge of
Moore’s involvement, repeating the point nineteen
45a
times during a polygraph test. Spartin then said “I
have no knowledge of that at all. . . . But, you know, I
read that goddam(n] testimony and I’m not a lawyer
but Jesus, there’s enough there to seem to me to hang
REI from the yardarm.” Spartin then testified before
the grand jury that in his “opinion” Moore knew of the
kickback scheme.
Postal inspectors also provided witness interview
statements and lab results to Paul Carlin, a former
Postmaster General dismissed by the Board of Gov-
ernors during the scanner controversy. Then, weeks
before an indictment was returned against Moore, the
inspectors passed along a draft indictment to Carlin.
Carlin later filed a civil RICO claim against Moore,
alleging that Moore conspired to have the Board
Moore, REI Vice President Robert Reedy, and REI
were indicted by a federal grand jury in the District of
Columbia in October 1988 for conspiracy to defraud the
United States, theft, receipt of stolen property, mail
fraud and wire fraud. Despite a court order to turn
over even “borderline” Brady evidence, Valder failed to
provide the defense with exculpatory material, include-
ing the Spartin lie detector results and the amended
statement of one witness denying any knowledge that
REI officials were aware of the kickbacks. The district
court granted Moore’s motion for judgment of acquittal
at the close of the government’s case, stating that
“[m]uch of what the government characterizes as incri-
mimatory evidence is not persuasive of guilt when
viewed in its full context [and] some of the govern-
ment’s evidence is exculpatory and points toward inno-
cent conduct. . . .” United States v. Recognition
Equip., Inc., 725 F. Supp. 587, 587-88 (D.D.C. 1989).
46a
Moore then brought his suits against Valder and the
postal inspectors under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91
S. Ct. 1999, 29 L. Ed. 2d 619 (1971), and against the
United States under the Federal Torts Claims Act
(FTCA), see 28 U.S.C. §§ 2671-2680. After proceedings
unnecessary to recount, the district court dismissed the
complaints and Moore appealed. This court considered
whether, as the district court determined, Valder
enjoyed absolute immunity from civil liability for mali-
cious prosecution and for retaliatory prosecution.' See
Moore, 65 F.3d at 192-95. Relying on the Supreme
Court’s distinction between a prosecutor’s role as an
advocate and his conduct as an investigator, see Imbler
v. Pachtman, 424 U.S. 409, 96 S. Ct. 984, 47 L. Ed. 2d
128 (1976), Burns v. Reed, 500 U.S. 478, 111 S. Ct. 1934,
114 L. Ed. 2d 547 (1991), Buckley v. Fitzsimmons, 509
U.S. 259, 113 S. Ct. 2606, 125 L. Ed. 2d 209 (1993), the
court decided that absolute immunity shielded some,
but not all, of Valder’s conduct. Absolute immunity
protected Valder from liability for his “decision to
prosecute Moore,” “for allegedly concealing exculpatory
evidence from the grand jury,” “for allegedly manipu-
lating evidence before the grand jury to create a false
impression of what Moore knew about the alleged
fraudulent schemes,” and for failing to disclose excul-
patory material before trial. 65 F.3d at 194. But abso-
lute immunity did not apply to Valder’s “[{iJntimidating
and coercing witnesses into changing their testimony”
or “disclosing grand jury information to unauthorized
third parties.” Jd. at 194-95.
' Moore did not appeal the dismissal of his other Bivens claims.
See 65 F.3d at 191 n.3.
47a
With respect to Moore’s claims under the Federal
Tort Claims Act, the court took note of the FTCA’s
“discretionary function” exception, which protects the
government from liability for “the exercise or per-
formance or the failure to exercise or perform a dis-
cretionary function or duty on the part of a federal
agency or an employee of the Government. . . .” 28
U.S.C. § 2680(a). The following alleged conduct fell
within the exception: “Deciding whether to prosecute,
assessing a witness’s credibility to ensure that he is
giving an accurate and complete account of what he
knows, identifying the evidence to submit to the grand
jury and determining whether information is ‘excul-
patory’ and ‘material’ and therefore must be disclosed
pursuant to a Brady request.” 65 F.3d at 197. “Dis-
closing grand jury testimony to unauthorized third
parties, however, is not a discretionary activity nor is it
inextricably tied to matters requiring the exercise of
discretion.” Jd.
On remand, Valder moved for summary judgment on
the retaliatory prosecution claim, contending that
Moore could not make out an essential element—that
_he brought the prosecution at least in part to retaliate
against Moore’s First Amendment activity—because
absolute immunity protected his decision to prosecute
Moore. The district court agreed and granted Valder’s
motion. See Moore v. Valder, No.92CV-2288, memo-
randum opinion at 17-24 (D.D.C. Feb. 5, 1998) (“mem.
op.”).
As to the FTCA claims, the district court determined
that only one aspect of Moore’s complaint survived
this court’s application of the discretionary function
exception—namely, the claim that “AUSA Valder and
the Postal Inspectors violated Federal Rule of Criminal
| —_— oe
48a
Procedure 6(e)(2) . . . by giving Spartin and former
Postmaster General Paul Carlin access to the Grand
Jury testimony of other witnesses for the purpose of
influencing Spartin’s testimony and for the apparent
purpose of assisting Carlin, a private plaintiff, to pursue
civil litigation. . . .” FTCA Complaint 4 26. Moore
argued that these two grand jury disclosures were
sufficient to make out his malicious prosecution and
abuse-of-process claims. Under the FTCA, however,
claims of malicious prosecution and abuse of process can
only arise from the conduct of “investigative or law
enforcement officers of the United States government.”
See 28 U.S.C. § 2680(h). “‘{I)nvestigative or law en-
forcement officer’ means any officer of the United
States who is empowered by law to execute searches, to
seize evidence, or to make arrests for violations of
Federal law.” Jd. Postal inspectors are so empowered,
see 39 C.F.R. § 233.1, but the district court concluded
that federal prosecutors are not, see mem. op. at 32 &
n.21 (citing Bernard v. United States, 25 F.3d 98 (2d
Cir. 1994); Gray v. Bell, 542 F. Supp. 927, 982 (D.D.C.
1982), aff'd, 712 F.2d 490 (D.C. Cir. 1983)). The district
court then ruled that the unprotected conduct of the
postal inspectors did not establish a malicious prosecu-
tion or abuse-of-process claim and granted judgment in
favor of the United States under Federal I.ule of Civil
Procedure 12(c). See mem. op. at 32-43.
Il.
Two of the elements of a claim of retaliatory pro-
secution are “first, that the conduct allegedly retaliated
against or sought to be deterred was constitutionally
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.”
49a
Haynesworth v. Miller, 820 F.2d 1245, 1256 n.93 (D.C.
Cir. 1987) (quoting Wilson v. Thompson, 593 F.2d 1375,
1387 (5th Cir. 1979)). Moore thinks the ground of the
district court’s dismissal of his claim—that absolute
immunity protected Valder with respect to his decision
to prosecute—contravened this court’s initial decision,
in violation of the mandate. See LaShawn A. v. Barry,
87 F.3d 1389, 1393 n.3 (D.C. Cir. 1996) (en banc). The
prior opinion did hold that some of Valder’s conduct
was not protected by absolute immunity and the court
did remand the retaliatory prosecution claim. But that
opinion said nothing about the elements of such a claim,
or whether Moore could succeed on his complaint.
Rather than dealing with those subjects, the opinion
focused on the type of prosecutorial conduct for which
there would be absolute immunity. One such type of
conduct, of course, was “the decision to prosecute
Moore.” 65 F.3d at 192. In his brief for that appeal,
Valder had argued that if he had immunity for his
prosecutorial decision, then Moore’s retaliatory prose-
cution claim could not go forward. But it is clear to us
that the court did not pass judgment on the argument,
explicitly or implicitly. It follows that the district court
did not contravene the mandate of this court.
According to Moore the district court erred for
another reason. As he sees it, his retaliatory prose-
cution claim is not predicated upon Valder’s decision to
prosecute him. Just as a police officer can be liable for
malicious prosecution as a result of his investigator y
conduct leading to the prosecution, so too, Moore con-
tends, should a prosecutor be liable if his investigatory
conduct leads to the prosecution. See infra Part IIIA.
The problem for Moore is that we rejected this very
argument in Dellums v. Powell, 660 F.2d 802, 805-07
50a
(D.C. Cir. 1981) (“Dellums IT’). A “prosecutorial
. Official,” we ruled, could not be “held liable for causing a
prosecution to be brought,” despite the fact that Jmbler
v. Pachtman, 424 U.S. 409, 480-31, 96 S. Ct. 984, 47 L.
Ed, 2d 128 (1976), extended only qualified immunity to
prosecutors acting in an investigatory capacity.’ 660
F.2d at 806. Moore believes the law has changed since
Dellums IT, but he cites no cases in which a prosecutor
has been held liable for malicious or retaliatory prose-
cution. If a prosecutor cannot be sued for malicious or
retaliatory prosecution, Moore asks, why would the
Supreme Court continue to devote its time to dis-
cerning which prosecutorial actions are protected by
absolute immunity and which are not? See Kalina v.
Fletcher, 522 U.S. 118, 118 S. Ct. 502, 139 L. Ed. 2d 471
(1997); Buckley v. Fitzsimmons, 509 U.S. 259, 118 S. Ct.
2606, 125 L. Ed. 2d 209 (1993); Burns v. Reed, 500 U.S.
478, 111 S. Ct. 1934, 114 L. Ed. 2d 547 (1991). The
answer is that there are potential causes of actions
against prosecutors that do not rely on the decision to
prosecute. A violation of the Fourth Amendment is one
of the more obvious examples.
* It may seem odd that the only official who could not be held
liable for malicious or retaliatory prosecution is the prosecutor. A
similar point was made in Jmbler, to which the Court responded
with a quotation: “As is so often the case, the answer must be
found in a balance between the evils inevitable in either alterna-
tive. In this instance it has been thought in the end better to leave
unredressed the wrongs done by dishonest officers than to subject
those who try to do their duty to the constant dread of retaliation.”
Imbler, 424 U.S. at 428, 96 S. Ct. 984 (quoting Gregoire v. Biddle,
177 F.2d 579, 581 (2d Cir. 1949) (Hand, J.)).
5la
We therefore will affirm the dismissal of Moore’s
Bivens claim against Valder.’
ITI.
With respect to Moore’s FTCA action against the
United States for malicious prosecution and abuse of
process, “the law of the place where the act or omission
occurred” is controlling. 28 U.S.C. § 1346(b). All agree
that District of Columbia law must be consulted. See
Tarpeh-Doe v. United States, 28 F.3d 120, 123 (D.C. Cir.
1994),
A. Malicious Prosecution
Under local law four elements make up the tort of
malicious prosecution: (1) the defendant’s initiation or
procurement of a criminal proceeding against the
plaintiff; (2) absence of probable cause for the pro-
ceeding; (3) malicious intent on the part of the defen-
dant; and (4) termination of the proceeding in favor of
the plaintiff. See Davis v. Giles, 769 F.2d 813, 814-15
(D.C. Cir. 1985) (citing RESTATEMENT (SECOND) OF
TORTS § 653 (1977)). As the first element indicates, in
theory not only the prosecutor who initiates criminal
proceedings, but also a person who “procures” a crimi-
nal proceeding may be liable for malicious prosecution.
See also Restatement (Second) of Torts § 653. In fact,
those who procure malicious prosecutions are usually
the only potential defendants because, as here, prosecu-
tors enjoy absolute immunity. See W. PAGE KEETON
* Moore also contends that the district court improperly denied
his request for discovery. But a district court may deny discovery
requests when additional facts are not necessary to resolve the
summary judgment motion. See White v. Fraternal Order of
Police, 909 F.2d 512, 516-17 (D.C. Cir. 1990) (en banc).
52a
ET AL., PROSSER AND KEETON ON TorTs § 119, at 873
(5th ed. 1984). To succeed in this case, Moore must rely
on the precurement component of the first element,
focusing on the conduct of the postal inspectors in
disclosing grand jury material. The remainder of the
postal inspectors’ conduct fell within the FTCA’s
discretionary function exception, see 65 F.3d at 197, and
none of Valder’s conduct can be the basis for a malicious
prosecution claim against the government because he is
not an investigative or law enforcement officer, see 28
U.S.C. § 2680(h).
In order to find that a defendant procured a pro-
secution, the plaintiff must establish “a chain of causa-
tion” linking the defendant’s actions with the initiation
of criminal proceedings. Dellums v. Powell, 566 F.2d
167, 192 (D.C. Cir. 1977) (“Dellums I’). Moore’s chain
consisted of the postal inspectors’ releasing of grand
jury testimony to Spartin, which caused Spartin to
incriminate him, which led to his indictment and then
his prosecution.‘ See mem. op. at 36; FTCA Complaint
{ 26.
* In his brief, Moore stated only that Valder disclosed grand
jury material to Spartin, though he mentions that the inspectors
were present at the time. See Brief for Appellant at 10. The
government jumps on this to argue that Moore’s claim had to be
dismissed because a malicious prosecution claim under the FTCA
can rely only on the conduct of investigative or law enforcement
officers and Valder is not one. Moore’s complaint, however,
alleged that “AUSA Valder and the Postal Inspectors violated
Federal Rule of Criminal Procedure 6(e)(2). . . by giving Spartin
and former Postmaster General Carlin access to the Grand Jury
testimony of other witnesses. . . .”. FTCA Complaint 4 26 (italics
added). We therefore assume that the postal inspectors did play a
role in presenting grand jury materials to Spartin.
58a
It may be helpful at this point to look more closely at
Dellums I and the chain of causation there held suffi-
cient to establish procurement of a prosecution. Plain-
tiffs had won a verdict against Powell, the D.C. Police
Chief, for his role in bringing about criminal charges
against anti-war demonstrators. See 566 F.2d at 173-75,
193. The court noted that the “chain of causation”
would have been broken if the decision to prosecute
was “independent of any pressure or influence exerted
by Powell and of any knowing misstatements which
Powell may have made” to the prosecutors. Jd. at 192-
93. But Powell had knowingly misled the prosecutors
when he failed to disclose the fact that the demon-
strators were “peaceful” and “not that disorderly.” Jd.
at 193. This was sufficient evidence “from which the
jury could have concluded that Chief Powell had pro-
cured the filing of informations. . . .”° Jd.
We see two distinctions between Moore’s case and
Dellums I. The first is that the postal inspectors
themselves did not make the misrepresentations, but
allegedly caused Spartin to make them. The district
court did not rely on this distinction and we think its
effect is only to require Moore to prove an additional
link: but for the postal inspectors’ disclosure of grand
jury testimony to Spartin, he would not have implicated
Moore before the grand jury. See KEETON ET AL.
§ 119, at 873 (stating that significant “second-hand”
involvement in instigating a prosecution is sufficient).
_ The second distinction is that the misleading informa-
tion was presented to the grand jury. The district court
made much of this: “Moore has alleged only that the
® The court ordered a new trial, however, because of improper
jury instructions. See id.
Pret eS er ean be
a
=. .- —-2. 22, ee
54a
postal inspectors influenced the grand jury’s decision to
indict . . . Moore’s allegations ignore the fact that
malicious prosecution requires the initiation of a pro-
secution by the Executive Branch, not the grand jury.
Even if this Court could determine that Spartin’s testi-
mony ‘caused’ the indictment, this would not satisfy the
first element because a grand jury indictment cannot by
itself initiate a prosecution.” Mem. op. at 36-37
(footnotes omitted). We do not believe this accurately
reflects District of Columbia law set forth in Davis v.
Giles. A criminal proceeding is a prerequisite to the
malicious prosecution tort. If the proceeding starts
with a grand jury indictment and the defendant
procured the indictment, the first element of the tort is
satisfied. When “an indictment is found by a grand jury
. the return of the indictment . . . marks the
institution of the proceedings.” RESTATEMENT
(SECOND) OF TORTS § 654 cmt. c; see KEETON ET AL.
§ 119, at 871-72 (“The initial step is of course a matter of
the procedure of the particular jurisdiction; and where
prosecution is begun by an indictment, or an infor-
mation filed by the prosecuting attorney, it seems clear
that this should be enough, since it constitutes official
action and sets the law in motion.”).
The government argues that because later actions—
the presentation of evidence to the grand jury, for
instance—were protected, Moore’s case collapses. The
district court seemed to agree. See mem. op. at 37. If
this were enough to break the chain of causation, if the
“discretionary function” of presenting evidence to the
grand jury or prosecuting the plaintiff shielded prior
misconduct from liability, a plaintiff would never be
able to make out a malicious prosecution claim against
the government. Yet the FTCA specifically recognizes
55a
the tort of malicious prosecution. See 28 U.S.C.
§ 2680(h). We think it follows that although a plaintiff
may not rely on an official’s alleged misconduct during
the exercise of discretionary functions, this does not im-
munize earlier, unprotected misconduct from ordinary
principles of tort liability. Cf. Jones v. City of Chicago,
856 F.2d 985, 994 (7th Cir. 1988); RESTATEMENT
(SECOND) OF TORTS § 653 cmt. g.
For similar reasons we disagree with the district
court that Valder’s continuation of the prosecution after
the indictment came down constituted an independent
act that broke the causal chain. See mem. op. at 37.
Without the indictment the prosecution could not have
continued. See FED. R. CRIM. P. 7(a). As we have said,
if a prosecutor’s continuation of a prosecution auto-
matically immunizes prior steps in the prosecution, then
the whole notion of liability for maliciously “procuring”
a prosecution would disappear. “[{A] prosecutor’s
decision to charge, a grand jury’s decision to indict, a
prosecutor’s decision not to drop charges but to proceed
to trial—none of these decisions will shield a police
officer who deliberately supplied misleading informa-
tion that influenced the decision.” Jones v. City of
Chicago, 856 F.2d at 994 (citing, among other cases,
Dellums I, 566 F.2d at 192-94); accord RESTATEMENT
(SECOND) OF TORTS § 653 emt. g. On the other hand, if
Moore would have been indicted and prosecuted any-
way, even without the postal inspectors’ alleged mis-
conduct and Spartin’s testimony, then the United
States cannot be held liable. See Jones, 856 F.2d at 993.
Since the case is still at the pleading stage, there is no
telling how the evidence will turn out. All that con-
cerns us now is that the complaint sufficiently set forth
a eee
56a
the first element of the malicious prosecution tort. See
Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir. 2000).
B. Abuse of Process
Under District of Columbia law, abuse of process
occurs when “process has been used to accomplish some
end which is without the regular purview of the
process, or which compels the party against whom it is
used to do some collateral thing which he could not
legally and regularly be required to do.” Jacobson v.
Thrifty Paper Boxes, Inc., 230 A.2d 710, 711 (D.C. 1967)
(citing 1 AM. JUR. 2D Abuse of Process § 4 (1962)).
Local courts have emphasized that “[t]he critical con-
cern in abuse of process cases is whether process was
used to accomplish an end unintended by law. . . .”
Morowité v. Marvel, 423 A.2d 196, 198 (D.C. 1980);
accord Bown v. Hamilton, 601 A.2d 1074, 1079 (D.C.
1992); see also Heck v. Humphrey, 512 U.S. 477, 486 n.
5, 114 S. Ct. 2364, 129 L. Ed .2d 388 (1994); Scott v.
District of Columbia, 101 F.3d 748, 755 (D.C. Cir. 1997)
(“The essence of the tort of abuse of process is the use
of the legal system ‘to accomplish some end which is
without the regular purview of the process. . . .’
“(quoting Bown v. Hamilton, 601 A.2d 1074, 1079 (D. C.
1992))). The Restatement also focuses on this element
of the tort: “For abuse of process to occur there must
be use of the process for an immediate purpose other
than that for which it was designed and intended.”
RESTATEMENT (SECOND) OF TORTS § 682 cmt. b.
Moore’s complaint failed to allege this critical ele-
ment of the abuse-of-process tort and, for this reason,
the district court properly rendered a judgment on the
pleadings in favor of the government. The only para-
graph in the complaint dealing with this tort alleged the
57a
following: “AUSA Valder and the Postal Inspectors
violated Federal Rule of Criminal Procedure 6(e)(2),
which protects the secrecy of Grand Jury proceedings,
by giving Spartin and former Postmaster General
Carlin access to the Grand Jury testimony of other
witnesses for the purpose of influencing Spartin’s testi-
mony and for the apparent purpose of assisting Carlin,
a private plaintiff, to pursue civil litigation in connec-
tion with his dismissal from the Postal Service. The
Postal Inspectors even gave Carlin a copy of a draft
indictment for his review.” FTCA Complaint 4 26. As
Moore sees it, his allegations regarding Carlin are
sufficient to make out a cause of action. But nothing in
paragraph 26 of the complaint speaks of using the
grand jury process for the purpose, immediate or other-
wise, of obtaining evidence to assist Carlin in bringing a
civil suit. The paragraph alleges only that the postal
inspectors disclosed witness testimony and the draft
indictment to Carlin.’ Disclosing information is a far
cry from using the grand jury to assist Carlin’s civil
litigation. If the complaint is true, the postal inspectors
violated the secrecy of the grand jury. But that does
not, in itself, constitute abuse of process. The “process”
here is the grand jury and the tort is made out only if
the grand jury is misused. Because Moore does not
allege the “critical concern” of abuse-of-process law—
® Given that the indictment became public, we do not see how
letting Carlin look at the draft could have damaged Moore unless
the draft contained information omitted from the final version. We
shall assume that the draft contained such information and that it
was grand jury material.
58a
that the inspectors used the grand jury for an improper
purpose—we affirm the judgment of the district court.
Affirmed in part and reversed in part.
7 We recognize that on Rule 12(c) motions “(w]e ‘view the facts
presented in the pleadings and the inferences to be drawn
therefrom in the light most favorable to the nonmoving party.”
Peters v. National R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C.
Cir. 1992) (quoting Jablonski v. Pan American World Airways,
Inc., 863 F.2d 289, 290-91 (3d Cir. 1988)). Even if we were to
stretch this principle beyond its ordinary confines and infer that
the postal inspectors somehow used the grand jury process for the
purpose of obtaining evidence that they passed along to Carlin,
Moore still could not make out an abuse-of-process claim. For one
thing, Moore cannot base his abuse-of-process claim on the pre-
sentation of evidence to the grand jury—that is a discretionary
function immune from suit under the FTCA. See Moore, 65 F.3d at
197; see also Doe v. Stephens, 851 F.2d 1457, 1462-63 (D.C. Cir.
1988) (causing a grand jury subpoena to issue falls within dis-
cretionary function exception). For another, prosecutors, not
postal inspectors, convene and conduct grand jury proceedings—
and the actions of a prosecutor cannot give rise to an abuse-of-
process claim under the FTCA. See mem. op. at 32 & n.21 (citing
28 U.S.C. § 2680(h)).
59a
APPENDIX E
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 92-2288 (NHJ)
(Consolidated with Civil No. 93C.V0324 (NHJ))
WILLIAM G. MooRrE, JR., PLAINTIFF
v.
JOSEH B. VALDER, ET AL., DEFENDANTS
Civil Action No. 93-0324 (NHJ)
(Consolidated with Civil No. 92CV2288 (NHJ))
WILLIAM G. Moorg, JR., PLAINTIFF
v.
UNITED STATES OF AMERICA, DEFENDANT
Filed: Feb. 5, 1998
MEMORANDUM OPINION
This case arises from the federal prosecution of
William G. Moore Jr. (“Moore”) on charges of fraud,
bribery, and conspiracy, of which Moore was acquitted,
see United States v. Recognition Equipment Inc., 725
F. Supp. 587 (D.D.C. 1989), and Moore’s Bivens' and
' See Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971).
60a
Federal Tort Claims Act (“FTCA”) claims for retalia-
tory prosecution, malicious prosecution, and abuse of
process against Assistant United States Attorney
Joseph Valder (“Valder”), six United States Postal
Service Inspectors (“postal inspectors”), and the United
States. Presently before the Court are the following
motions: 1) defendant Postal Inspectors’ Motion to
Strike Affidavit and Plaintiffs Amended Local Rule
108(h) Statement; 2) defendant Valder’s Motion to
Strike Affidavit and Plaintiff's Amended Local Rule
108(h) Statement; 3) defendant Valder’s Motion for
Summary Judgment; 4) plaintiff's Motion to Clarify the
Stay Order of September 16, 1996, asking whether it
applies to Valder; 5) defendant Postal Inspectors’
Motion for Summary Judgment; and 6) defendant
United States’ Motion for Judgment on the Pleadings
or, in the Alternative, to Dismiss for Lack of Subject
Matter Jurisdiction. The Court will address the motions
in this order in light of the Court of Appeals’ opinion in
this case, Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995),
cert. denied, 117 S. Ct. 75 (1996).
I. BACKGROUND
A. The Facts
As the United States Court of Appeals for the
District of Columbia Circuit fully discussed Moore’s
claims in its opinion, see Moore, 65 F.3d at 191-92, the
allegations in Moore’s complaint and other submissions
relevant to the pending motions are summarized as
follows.
On October 6, 1988, plaintiff Moore was indicted for
allegedly conspiring to bribe a member of the Board of
2 28 U.S.C. §§ 2671 et seq.
6la
Governors of the United States Postal Service
(“USPS”) in order to procure business for Recognition
Equipment, Inc. (“REI”). Moore was Chairman, Pre-
sident, and Chief Executive Officer of REI at the time.
Moore and Robert Reedy, another REI employee, were
charged with participating in a kickback scheme in
which a consulting firm, Gnau & Associates, Inc.
(“GAI”), paid kickbacks to Peter E. Voss, a member of
the Board of Governors of USPS, in exchange for his
encouraging USPS business for GAI’s clients, including
REI. See United States v. Recognition Equip., Inc.,
725 F. Supp. 587, 589 (D.D.C. 1989). Five co-conspira-
tors in the scheme, Peter Voss, John Gnau, Michael
Marcus, Sharon Peterson, and William Spartin, pled
guilty or testified pursuant to a grant of immunity. On
November 20, 1989, Moore was acquitted of all charges.
See id.
Two years later, on November 19, 1991, Moore com-
menced a Bivens cause of action for malicious prosecu-
tion (malicious prosecution claim) and one for prosecu-
tion in retaliation for the exercise of his First Amend-
ment rights (retaliatory prosecution claim) against
Valder and six postal inspectors. See Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). The six postal inspectors are
Frank Korman, Michael Hartman, Robert Edwards,
Norman Robbins, Pierce McIntosh, and Daniel Har-
rington. Robbins and McIntosh have since retired, and
Harrington has since died. Moore alleges that Valder
and the postal inspectors conspired to prosecute him
with malicious intent and/or in retaliation for public
criticism of USPS.
The Court finds that Moore did engage in public
criticism of USPS prior to his indictment and prosecu-
62a
tion by Valder and that his conduct is constitutionally
protected by the First Amendment.’ In 1983, former
Postmaster General (“PMG”) William Bolger an-
nounced that USPS would use single-line scanners to
identify addresses on mail instead of the multi-line
scanners developed by REI. After this announcement,
Moore voiced his criticism of USPS to Bolger, Assistant
PMG James Jellison, the media, and members of the
United States Congress. In 1985, Moore, Reedy, and
REI lobbie? to have Jellison and Bolger’s successor as
PMG, Paul N. Carlin, dismissed from USPS because of
their opposition to REI’s multi-line technology. That
same year, USPS began investigating REI for alleged
irregularities in the procurement processes of USPS.
Moore claims that this investigation and his subse-
quent indictment and prosecution in 1988 and 1989
were brought in retaliation for his public criticism of
USPS and its management. Valder and the postal
inspectors allegedly coerced witnesses into incrimi-
nating Moore by using intimidation tactics and by
disclosing secret grand jury information to them. Spe-
cifically, Moore claims that defendants coerced William
Spartin, the president of GAI, into implicating Moore
during his grand jury testimony. Spartin had been
granted immunity from prosecution in exchange for his
grand jury testimony. During a polygraph examination
conducted by postal inspector Norman Robbins on
December 5, 1986, Spartin stated nineteen times that
he had no personal knowledge that Moore and REI
knew of the kickback scheme. Moore claims that in
8 The Court makes this finding and other findings of fact in this
opinion on the basis of its decision regarding the postal inspectors’
and Valder’s motions to strike Moore’s amended affidavit and
Local Rule 108(h) statement. See supra pp. 10-17.
63a
order to coerce Spartin into implicating him, Valder and
the postal inspectors tore up Spartin’s immunity letter
in front of him, threatened to prosecute his son, and
showed him the grand jury statements of four co-con-
spirators.’ These statements were allegedly drafted by
Valder and the postal inspectors and indicated that
REI and Moore had knowledge of the illegal payoffs.
At Moore’s criminal trial, Valder admitted that he
gave Spartin government-authored statements of the
four other unindicted conspirators that had been
adopted as part of the grand jury testimony. See Trial
Tr. at 2553-54, 2561. He also admitted in his Answer to
Moore’s Bivens Complaint that a preplanned tearing up
of Spartin’s immunity letter did occur. See Valder’s
Answer at 4 21. On the basis of the evidence before it,
the Court finds that Valder and the postal inspectors
tore up Spartin’s immunity letter, disclosed grand jury
statements to him, and in some way threatened his son.
The Court also finds that this conduct influenced
Spartin’s statement to the grand jury that in his
“opinion,” Moore had to have known about the illegal
payoffs. The Court notes that none of Spartin’s earlier
statements indicating that Moore had no knowledge of
the illegal scheme were ever presented to the grand
jury.
Moore alleges that Valder and the postal inspectors
also coerced Frank Bray, REI’s Manager of Postal
Programs, into changing his testimony to implicate
Moore. Bray, like Spartin, had been granted immunity
in exchange for his testimony to the grand jury. During
interviews, Bray repeatedly told Valder and the postal
* The statements came from Voss, Peterson, Marcus, and Gnau.
‘See Trial Transcript 2550-54, 2727-31.
64a
inspectors that Moore had no knowledge of the kick-
back scheme; nevertheless, they asked him to sign a
witness statement indicating that Moore had knowl-
edge. See Trial Tr. at 1809-11, 1832-33, 1939. When
Bray refused to sign it, Valder told him he would have
to testify before the grand jury for five to seven days or
“however long it takes.” See id. at 1824. Bray and his
attorney then insisted that a paragraph be added to the
witness statement to show that Moore had no knowl-
edge of the scheme. See id. at 1833. Valder and the
postal inspectors would not permit its inclusion, but
agreed to afford Bray an opportunity to testify that
Moore did not know of the scheme. See id. at 1939,
1943-44. When Bray testified before the grand jury,
however, Valder did not allow him to do this. See id. at
1944.
Moore has also alleged that postal inspector
McIntosh disclosed secret grand jury material to
former PMG Paul Carlin in order to help Carlin bring a
civil case against REI, Moore, and Reedy for Carlin’s
dismissal from USPS. Soon after Moore and Reedy
were indicted, Carlin brought a $15 million RICA claim
against them. Information that the government pro-
duced as Jencks material in Moore’s criminal case
reveals notes of a phone conversation between Carlin
and postal inspector McIntosh on December 9, 1986
(“McIntosh Notes”). The McIntosh Notes indicate that
Carlin requested and received grand jury information
regarding interviews of former PMG Al Casey, Deputy
PMG Jackie Strange, and John McKean, chairman of
the USPS Board of Governors, and a lab examination.
According to Carlin’s testimony at Moore’s criminal
trial, postal inspectors Hartman and Kormann also
65a
reviewed a draft indictment of Moore with Carlin on
September 20, 1988. See Trial Tr. at 2153-56.
The Court finds on the basis of the McIntosh Notes
and Carlin’s trial testimony that postal inspectors
McIntosh, Hartman, and Kormann disclosed secret
grand jury information to Carlin in violation of Federal
Rule of Criminal Procedure 6(e). Moore alleges that the
purpose of these disclosures was to help Carlin bring a
civil case against Moore, Reedy, and REI. On the basis
of Moore’ evidence, the Court cannot find that this was
indeed the postal inspectors’ motive, but accepts this
allegation as true for purposes of deciding the motion
for judgment on the pleadings filed by defendant
United States. See Fed. R. Civ. P. 12(c). Valder and
the postal inspectors’ disclosures of grand jury infor-
mation to Spartin and Carlin and their coercion of wit-
nesses Spartin and Bray constitute the primary facts
upon which Moore’s remaining Bivens and FTCA
claims rest.
B. Procedural History
In November 1991, Moore filed a complaint in the
U.S. District Court for the Northern District of Texas
against Valder and the postal inspectors alleging among
other torts malicious and retaliatory prosecution under
Bivens. This case was subsequently transferred to this
Court in September 1992. On October 14, 1992, Moore
filed a second complaint in the Northern District of
Texas against the United States pursuant to the FTCA,
28 U.S.C. §§ 2671 et seq., setting forth claims for
malicious prosecution, false arrest, abuse of process,
and various constitutional torts. The second case was
also transferred to this Court and consolidated with the
first case.
66a
The U.S. District Court for the Northern District of
Texas dismissed the Bivens claim against Valder,
finding him protected by absolute immunity. The
district court transferred the Bivens claims against the
postal inspectors to this Court for lack of in personam
jurisdiction and transferred the FTCA claim against
the United States to this court as well. After denying
Moore’s motion to return the complaints to the
Northern District of Texas, this Court dismissed the
Bivens claims against the postal inspectors because
Moore’s complaint failed to meet a heightened pleading
standard. This Court also dismissed the FTCA claims
against the United States for lack of subject matter
jurisdiction, holding that the alleged misconduct fell
within the “discretionary function” exception of the
FTCA. See 28 U.S.C. § 2680(a).
Moore subsequently appealed the dismissals of his
claims against Valder, the postal inspectors, and the
Untied States to the D.C. Circuit. The D.C. Circuit
affirmed some of the dismissals, but remanded some of
the claims against Valder, the postal inspectors, and the
United States, Moore v. Valder, 65 F.3d 189 (D.C. Cir.
1995). These claims had been dismissed under the
standard set by Federal Rule of Civil Procedure
12(b)(6).’ On appeal, the D.C. Circuit “accept[ed] the
® If a plaintiff fails to state a claim upon which relief can be
granted, the court must dismiss the claim. See Fed. R. Civ. P.
12(b)(6). In deciding a Rule 12(b)(6) motion, the court “may
consider only the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint and matters of
which we may take judicial notice.” E.E.0.C. v. St. Frances Xavier
Parochial School, 117 F.3d 621, 625 (D.C. Cir. 1997). The “com-
plaint should not be dismissed for failure to state a claim unless it
appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Kowal v.
67a
facts alleged in [Moore’s] complaint” and reviewed the
district court’s Rule 12(b)(6) dismissals de novo. Moore,
65 F.3d at 192.
The findings of the D.C. Circuit under Rule 12(b)(6)
therefore evaluated only the legal sufficiency of Moore’s
allegations rather than Moore’s evidence to support
those allegations, which is what this Court must con-
sider when deciding defendants’ motions for su
judgment under Federal Rule of Civil Procedure 56.°
Allegations that can survive a Rule 12(b)(6) motion will
not necessarily survive a motion for summary judgment
under Rule 56. See United States v. Students
Challenging Regulatory Agency Procedures ( SCRAP),
412 U.S. 669, 689-90 n.15 (1973); Wilderness Society v.
Griles, 824 F.2d 4, 15 (D.C. Cir. 1987) (noting that
“while a motion of dismiss may be decided on the plead-
ings alone, construed liberally in favor of the plaintiff, a
motion for summary judgment by definition entails an
opportunity for a supplementation of the record, and
accordingly a greater showing is demanded of the
plaintiff.”). Furthermore, the “heightened pleading
standard” applied in the D.C. Circuit’s opinion in Moore
v. Valder was unanimously rejected by the D.C. Circuit
in Crawford-El v. Britton, 93 F.3d 813, 829 (D.C. Cir.
1996) (en banc), cert. granted, 117 S.Ct. 2451 (1997)
MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994).
Additionally, “(t]he complaint must be ‘liberally construed in favor
of the plaintiff, who must be granted the benefit of all inferences
that can be derived from the facts alleged.” Jd. (footnote omitted).
® While Rule 12(b)(6) motions are decided on the basis of the
pleadings, Rule 56 summary judgment motions are decided on the
basis of the pleadings and matters outside of them, such as sup-
porting and opposing affidavits. In this case, the Court will have to
consider the parts of Moore’s affidavit and Rule 108(h) statement
that this Court decides not to strike.
68a
(“Crawford-El II”). For these reasons, this Court will
consider defendants’ summary judgment motions in
light of the D.C. Circuit’s opinion in Moore and the
standards set by Rule 56 and Crawford-El II.
Because Moore’s claims rely on Crawford-El II, the
Court must first describe the holdings of that case. Al-
though there is no question that the D.C. Circuit re-
jected the “heightened pleading standard” in Crawford-
El II, the parties dispute whether a majority o the
Court of Appeals judges adopted a standard for consti-
tutional tort cases requiring “clear and convincing
evidence” of a defendant government official’s unconsti-
tutional motive. Crawford-El II, 93 F.3d at 821-24.
United States Court of Appeals judges who have refer-
enced Crawford-El II in their opinions believe the D.C.
Circuit has adopted the clear and convincing standard.’
Three district court judges within the D.C. Circuit have
also reached this conclusion."
* See, eg., Tang v. State of Rhode Island, Dep't of Elderly
Affairs, 120 F.3d 325, 327 (1st Cir. 1997); McMillan v. W.E.
Johnson, 101 F.3d 1363, 1368-39 (11th Cir. 1996) (Propst, J., con-
curring).
® See Byrd v. Moseley, 942 F. Supp. 642, 645 (D.D.C. 1996) (“In
Crawford-El v. Britton, the Court of Appeals for this circuit
recently held that a Ԥ 1983 or Bivens plaintiff who seeks damages
from a government official for a constitutional tort must prove the
defendant’s unconstitutional motive (where that is an element of
the tort) by clear and convincing evidence’ to withstand a motion
summary judgment on the grounds of qualified immunity.”) (quot-
ing J. Ginsburg’s concurrence); Bridges v. Kelley, 977 F. Supp. 503,
509 n.11 (D.D.C. 1997) (“Under the rule announced in Crawford-E],
plaintiff must adduce clear and convincing evidence of motive on
the part of the defendants.”) (citation omitted); District Council 20
v. The District of Columbia, 1997 WL 446254, at *12-*13 (D.D.C.
July 29, 1997) (applying first the “clear and convincing” test to
69a
What is clear from Crawford-El II is that “J udge
Ginsburg’s separate opinion . . . . is controlling on
[the issue of discovery] as the opinion consistent with
the disposition on the narrowest ground.” Crawford-El
IT, 93 F.3d at 829 (citing King v. Palmer, 950 F.2d 771
(D.C. Cir. 1991)). According to Judge Ginsburg, if a
plaintiff facing a summary judgment motion cannot
establish clear and convincing evidence of the de-
fendant’s unconstitutional motive, the motion should be
granted unless the plaintiff can show, “based upon such
evidence as he may have without the benefit of dis-
covery and any facts to which he can credibly attest,”
that he has “a reasonable likelihood of turning up
evidence that a jury could consider clear and convincing
proof of the defendant’s unconstitutional motive.” Id,
at 841 (Ginsburg, J. concurring). If the plaintiff can
demonstrate this “reasonable likelihood,” he should be
allowed to pursue “limited discovery.” Id.
Because Moore’s retaliatory prosecution claims
against Valder and the postal inspectors constitute
motive-based constitutional tort actions, this Court
must apply Crawford-El II to defendants’ summary
judgment motions. The Court will apply the case in the
following manner. First, the Court will look to see if
Moore has “clear and convincing” evidence of defen-
dants’ retaliatory motive to withstand their summary
judgment motions. If Moore cannot meet this standard,
then the Court will apply Judge Ginsburg’s standard to
determine whether Moore should nonetheless be per-
mitted to pursue limited discovery on the motive issue.
Before turning to defendants’ dispositive motions,
however, the Court will first decide whether to grant
determine whether summary judgment should be granted and
then Judge Ginsburg’s test to see if discovery was warranted).
~~” “sl
70a
Valder and the postal inspectors’ motions to strike
Moore’s amended affidavit and 108(h) statement.
II, DISCUSSION
A. Postal Inspectors’ and Valder’s Motions to
Strike Moore’s Amended Affidavit and Local Rule
108(h) Statement
On February 25, 1997, this Court issued an Order
striking Moore’s affidavit of June 30, 1990, and his
Statement of Material Facts as to Which There Exists a
Genuine Issue to be Litigated (“108(h) statement”) filed
in opposition to the Postal Inspectors’ Motion for Sum-
mary Judgment, because the former did not comply
with Federal Rule of Civil Procedure 56(e) and the
latter did not comply with Local Rule 108(h). Moore
filed an amended 108(h) statement and an amended
affidavit in opposition to the postal inspectors’ sum-
mary judgment motion. Moore subsequently filed the
same amended documents in opposition to Valder’s
summary judgment motion. Both the postal inspectors
and Valder have moved to strike the amended affi-
davits and amended 108(h) statements filed in opposi-
tion to their respective motions for summary judgment.
As the amended affidavits and 108(h) statements are
“in all material respects identical” and allegedly suffer
from the same defects,’ the Court will address the
postal inspectors’ and Valder’s motion to strike simul-
taneously.
® In his motion to strike Moore’s amended affidavit and 108(h)
statement, Valder indicated that he joins in the arguments . nade in
the postal inspectors’ memoranda supporting their second motion
to strike.
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The postal inspectors and Valder ask the Court to
strike Moore’s entire affidavit and the entire 108(h)
statement, alleging that significant parts of them do not
comport with FRCP 56(e) and Local Rule 108.
Although the Court has the discretion to strike Moore’s
amended affidavit and 108(h) statement in their
entirety as it did in its Order of February 25, 1997, the
Court finds that Moore made an effort to comply with
its Order and it is not necessary to strike the amended
submissions altogether. The Court therefore strikes
only those portons of the affidavit and 108(h) statement
that are inadmisible for the reasons explained below.
See Casas Office Machs., Inc. v. Mita Copystar Am.,
Inc., 42 F.3d 668, 682 (1st Cir. 1994).
The postal inspectors and Valder argue that Moore’s
amended affidavit contains statements that are not
based upon his personal knowledge. Federal Rule of
Civil Procedure 56(e) provides in relevant part that:
Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as
would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify
to the matters stated therein. Sworn or certified
copies of all papers thereof references to in an
affidavit shall be attached thereto or served there-
with.
The postal inspectors and Valder claim that Moore’s
amended affidavit continues to rely on hearsay state-
ments and factual assertions not bases upon Moore’s
personal knowledge. Under Rule 56(e), the facts set
forth in affidavits submitted in opposition to a summary
judgment motion must be “such as would be admissible
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in evidence.” Jameson v. Jameson, 176 F.2d 58, 60
(D.C. Cir. 1949).
Moore argues that the Court should permit hearsay
statements in his affidavit and 108(h) statement be-
cause formal discovery has yet to take place in this
case. He cites a 1991 I’.~. Circuit case indicating that
“{iJnadmissible hearsay reports of the defendant’s
specific statements indicating malicious intent” can
meet the Circuit’s heightened pleading standard” when
discovery has not yet occurred. See Crawford-El v.
Britton, 951 F.2d 1314, 1320 (D.C. Cir. 1991), cert.
denied, 506 U.S. 818 (1992) (“Crawford-El I’). The
heightened pleading standard applied in Crawford-El I,
however, was replaced with new standards in Craw-
ford-El II, as explained above. See Crawford-El II, 93
F.3d at 815. Applying the standards of Crawford-El I],
this Court will not consider hearsay statements in
Moore’s affidavit or 108(h) statement because such
statements are neither “evidence” nor “facts to which
he can credibly attest.” Jd. at 841.
Paragraphs 25 and 35 of Moore’s Amended Affidavit
In paragraph 25, Moore states: “I was later informed
that Mr. Valder and the inspectors characterized my
answers as the ‘biggest ___ing lies a man can tell.’”
The heightened pleading standard in Crawford-El |
“insist{ed) that, before discovery, plaintiffs suing government
officers fro damages set forth ‘nonconclusory allegations’ that are
‘sufficiently precise to put defendants on notice of the nature of the
claim, and enable them to prepare a response and, where ap-
propriate, a summary judgment motion on qualified immunity
grounds.” /d. at 1317. Because there has been no opportunity for
discovery, “the heightened pleading requirement demands only
that plaintiff ‘relat{e] the pertinent information that is already in
his possession.’” Jd. at 1320 (citation omitted).
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Moore openly admits that this assertion is based upon
the report of others, not his own personal knowledge.
Because the statement constitutes inadmissible hearsay
under Federal Rule of Evidence 802, the Court strikes
it. In paragraph 35, Moore references assertions made
in a trade journal editorial regarding the alleged
“hatred” between REI and the top reaches of the
Postal Service. Because these assertions are not based
on Moore’s personal knowledge, but rather on an
editorial, they must also be struck for noncompliance
with Rule 56 (e). As a result of striking paragraph 35
and Exhibit 3 of Moore’s affidavit, the Court also
strikes the second sentence of statement 15 in Moore’s
108(h) statement, which relies on the affidavit.
Paragraphs 21 and 22 of Moore’s Amended Affidavit
In Paragraph 22, Moore states that former PMG
William Bolger and Former Assistant PMG James
Jellison were “aware of my sharp criticism [of the
USPS optical character reading procurement strategy]
and that I had taken the matter to Congress.” While
defendants concede that Moore can testify to another
person’s state of mind if his testimony were based upon
personal observation, they claim that Moore failed to
state facts in his affidavit demonstrating that requisite
foundation. See Securities and Exchange Comm’n v.
First City Financial Corp., Ltd, 688 F. Supp. 705, 720
(D. D.C. 1988), aff'd, 890 F.2d 1215 (D.C. Cir. 1989);
Fed. R. Evid. 602. Moore counters that paragraph 21
shows that he told Bolger of his intent to approach the
USPS Board of Governors and the U.S. Congress to
stop the single-line ZIP+4 implementation. In the
Court’s view, paragraph 21 shows that Bolger and
Jellison were aware of Moore’s criticism and permit the
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reasonable inference that they knew he went to Con-
gress. The Court will not strike paragraph 22.
Paragraphs 26, 27, 29, 30, 32, and 39 of Moore’s
Amended Affidavit
With respect to paragraphs 26, 27, 29, 30, 32, and 39,
defendants against contend that they are not based on
Moore’s personal knowledge, but rather on testimony of
others at his trial or on speculation as to why certain
allegations were included in his indictment. The Court
agrees that Moore lacks personal knowledge of why and
how his indictment was prepared and will strike specu-
lative statements in paragraph 26. As for statements in
the challenged paragraphs referencing testimony at
Moore’s criminal trial, Moore must cite the trial tran-
script to support his 108(h) statement and cannot rely
on his own affidavit for such support. Thus, Moore’s
references to what the Court found in his trial and what
Moore “learned” from observing trial testimony must
be struck from his affidavit. However, this does not
preclude Moore from citing the trial record directly in
support of his 108(h) statement, which Moore has done.
Thus, although the Court strikes parts of paragraph 26
and all of paragraph 27, 31, and 32 of Moore’s affidavit,
the Court upholds Moore’s citations to the “McIntosh
Notes,” the Trial Transcripts, and the Spartin Poly-
graph found in his 108(h) statement.
The Court also finds that paragraphs 29 and 32 are
not based on Moore’s personal knowledge and therefore
strikes them. Both paragraphs contain statements that
rely upon the statements of others made at trial or
elsewhere. This reliance violates Rule 56(e) because
“[pjersonal knowledge may not be based upon the
statements of another.” Securities & Exchange Com-
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mission v. First City Financial Corp., Ltd., 688
F. Supp. 705, 720 (citation omitted), aff'd, 890 F.2d 1215
(D.C. Cir. 1989). While Moore can cite information
contained in the trial transcript or district court opinion
issued in his criminal case" to support his 108(h)
statement, such information does not constitute his
personal knowledge and therefore must be struck from
his affidavit.
The Court also strikes paragraph 39 because Moore
once again cites the statement of another as is own, this
time the affidavit of William C. Hittinger. Moore can
cite and has cited the Hittinger Affidavit directly to
support statement 28 of his 108(h) statement. The
Hittinger Affidavit asserts that AUSA Valder did not
care whether Moore was guilty because he needed “a
track record and some notoriety which would help him
obtain a good position in private practice.” Hittinger
Affidavit at { 6. According to Hittinger, AUSA Valder
said this in his company and that of several postal
inspectors, who did not respond to the comment. The
Court will consider the Hittinger Affidavit in deciding
the summary judgment motions.
Paragraphs 40 and 17 of Moore’s Amended Affidavit
In paragraph 40 of his affidavit, Moore attempts to
allege evidence of malicious intent on the part of the
defendants. Most of the statements this paragraph,
however, constitute mere opinion and speculation about
the state of mind of the defendants and are not sup-
ported by Moore’s personal knowledge. For these
reasons, the Court strikes all the paragraph 40, except
for Moore’s personal observations that USPS manage-
! United States v. Recognition Equipment, Inc., 75 F. Supp. 587
(D.D.C. 1989).
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ment appeared angered by his criticism of them and
that the postal inspectors appeared hostile to him
during the USPS investigation of him. Lastly, the
Court strikes PMG Bolger’s 1982 statement about “bad
blood” between USPS and REI referenced in para-
graph 17 of Moore’s affidavit, because although the
statement satisfies the personal knowledge require-
ment of rule 56(e), the statement constitutes inadmiss-
ible hearsay.
Moore’s Amended 108(h) Statement
Having struck several paragraphs of Moore’s affi-
davit, the Court now looks to Moore’s 108(h) statement.
The importance of filing a proper Rule 108(h) statement
is well established. See Jackson v. Finnegan,
Henderson, Farabow, Garrett & Dunner, 101 F.3d 145,
151 (D.C. Cir. 1996). Strict compliance with the Local
Rule is necessary because courts rely upon the state-
ment to distinguish disputed from undisputed facts and
to identify the pertinent parts of the record. Jd.
The Court finds the sections of Moore’s 108(h) state-
ment entitled “the Strained Relationship between REI
and the USPS” and “The Postal Inspector’s Abusive
Conduct” to be problematic because they are argu- -
mentative and conclusory. A Rule 108(h) statement
should be struck when it “blend[{s] factual assertion
with legal argument.” Jd. at 153. Many instances in
these sections of Moore’s 108(h) statement characterize,
rather than merely assert, material facts. For instance,
the word “abusive” in the heading must be struck, as
well as statements such as “the postal inspectors em-
ployed improper techniques” (statement 23), “the
Postal Inspectors and . . . Valder also attempted to
coerce witnesses into false testimony” (statement
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24(b)), “[iJn order to coerce Spartin into inculpating
Moore,” and “{iJn order to trick Spartin into inculpating
Moore” (statement 24(c)). These statements not only
use argumentative language but also presume knowl-
edge of the defendants’ state of mind, and therefore
must be struck. The Court also finds that statement
36” is argumentative and therefore strikes it.
Having struck paragraph 17 and most of paragraph
40 of Moore’s affidavit, the Court must also strike the
parts of statement 16 in the 108(h) statement that rely
on such paragraphs. While the Court finds that para-
graphs 21 and 22 support a finding that the reationship
between REI and the USPS was “strained” during
parts of Moore’s tenure with REI, the Court strikes the
language alleging that the relationship was strained
“before” Moore’s arrival and “worsened after it.” Para-
graphs 21 and 22 show merely that Bolger and Jellison
knew of Moore’s criticism of USPS and appeared
“upset” to Moore.
Upon consideration of defendants’ motions to strike
Moore’s amended affidavit and 108(h) statement,
memoranda in support and in opposition, and the entire
record, the Court grants the motions in part, and denies
them in part, as indicated in the paragraphs above. On
the basis of what remains of the 108(h) statement and
the supporting exhibits, including what is left of
Moore’s affidavit, the Court will decide whether to
grant the summary judgment motions of Valder and the
postal inspectors with respect to the Bivens claims
remanded by the D.C. Circuit. The Court will conclude
2 Statement 26 reads: “The Postal Inspectors have not sub-
mitted any proof evidencing a legitimate motive for the investiga-
tion and indictment of William G. Moore, Jr.”
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by deciding whether to grant judgment on the plead-
ings in favor of the United States with respect to
Moore’s FTCA claims remanded by the D.C. Circuit.
B. Valder’s Summary Judgment Motion With
Respect to the Remanded Bivens Claims and
Moore’s Motion To Clarify Order of September. 16,
1996, Staying Discovery
The United States District Court for the Northern
District of Texas found that Valder was protected by
absolute immunity from the Bivens claims brought
against him and granted Valder’s motion under Federal
Rule of Civil Procedure 12(b)(6). That case was trans-
ferred to this Court and on appeal, the D.C. Circuit held
that absolute immunity protects Valder from liability
for some of his conduct, but not all of it, and remanded
part of the case that had been improperly dismissed
under Rule 12(b)(6). See Moore v. Valder, 65 F.3d 189,
194 (D.C. Cir. 1995). The D.C. Circuit held that Valder
was not liable for “the decision to prosecute Moore” nor
“for allegedly concealing exculpatory evidence from the
grand jury and for allegedly manipulating evidence
before the grand jury to create a false impression of
what Moore knew about the alleged fraudulent
schemes.” Jd. Valder, however, does not enjoy ab-
solute immunity for “intimidating and coercing wit-
nesses into changing their testimony” and “disclosing
grand jury testimony to unauthorized third parties”
because this conduct is not “advocacy.” Id. at 194-95.
The D.C. Circuit noted that Valder is entitled to any
qualified immunity available to the postal inspectors.”
Id. at 195 n.8.
The issue for this Court on remand is whether
Valder’s alleged conduct of coercing witnesses and
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disclosing grand jury testimony can establish a Bivens
claim for retaliatory prosecution.” In his motion for
summary judgment, Valder first argues that Moore
cannot establish an essential element of his claim for
retaliatory prosecution because the absolute immunity
doctrine protects Valder’s decision to prosecute Moore.
Valder also argues that the qualified immunity doctrine
protects him from any liability arising out of forcing
witnesses to change their testimony and unauthorized
disclosures of grand jury material. The Court finds the
first argument persuasive and therefore does not reach
the second. For the reasons given below, the Court will
grant Valder’s summary judgment motion.
On appeal from the dismissal of Moores claims
against Valder, the D.C. Circuit accepted the facts as
alleged in Moore’s complaint and reviewed the Rule
12(b)(6) dismissal de novo. See Moore, 65 F.3d at 192.
The findings of the D.C. Circuit under Rule 12(b)(6)
standards reflect a different evidentiary basis than that
required by Valder’s motion for summary judgment
under Federal Rule of Civil Procedure 56. Under Rule
12(b)(6), the Court construes the allegations in the
complaint liberally and draws all inferences therefrom
in favor of the plaintiff to see if he or she has stated a
claim upon which relief can be granted. Kowal v. MCI
Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994). Under Rule 57, the Court does not accept the
complaint as true but rather looks at the plaintiff's
evidence to see if there is a genuine issue of material
fact requiring resolution at trial. See FED. R. Civ. P.
56(c)-(e). The D.C. Circuit therefore applied a more
'8 Moore concedes in his Opposition to Valder’s summary
judgment motion that the only remaining claim against Valder is
one of retaliatory prosecution.
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lenient standard than this Court must apply under Rule
56. Additionally, the “heightened pleading standard”
applied in the D.C. Circuit’s opinion has been unani-
mously rejected by the D.C. Circuit in Crawford-El II,
93 F.3d at 829. To account for these differences, this
Court will consider defendants’ summary judgment
motions in light of the standards set by Rule 56 and
Crawford-El II, as well as the findings of the D.C.
Circuit in Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995).
The Court should grant a summary judgment motion
whenever the evidence shows that “there is no genuine
issue as to any material facts and that the moving party
is entitled to judgment as a matter of law.” FED. R.
Civ. P. 56(c). Only a factual dispute that “might affect
the outcome of the suit under the governing law” can
preclude summary judgment. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party
must identify the absence of sufficient evidence on an
essential element of the nonmoving party’s case. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The
nonmoving party “may not rest upon mere allegations
or denial of [his] pleading, but [his] response, by
affidavits or as otherwise provided in this rule, must set
forth specific facts showing that there is a genuine issue
for trial.” FED. R. Civ. P. 56(e). If the nonmoving
party fails to do this, summary judgment must issue in
favor of the moving party. The Court must believe the
evidence presented by the nonmoving party and draw
all reasonable inferences from it. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 266 (1986). However,
“(t]he mere existence of a scintilla of evidence in sup-
port of the plaintiffs position will be insufficient; there
must be evidence on which the jury could reasonably
find for the plaintiff.” Jd. at 252.
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Valder argues that he is entitled to summary judg-
ment as a matter of law because Moore cannot make out
an essential element of retaliatory prosecution, which is
Moore’s only remaining claim against him. An essential
element of a Bivens claim for retaliatory prosecution is
that the defendant brought the prosecution in question
in order to retaliate against the individual for exer-
cising his First Amendment rights. See Haynesworth
v. Miller, 820 F.2d 1245, 1257 n.98 (D.C. Cir. 1987). To
overcome a motion for summary judgment, Moore
would have to come forward with clear and convincing
evidence from which a reasonable trier of fact could find
that Valder brought the prosecution with the purpose
of retaliating against Moore for his criticism of USPS.
See Crawford-El IT, 93 F.3d at 829.
According to Valder, he cannot be held liable for
retaliatory prosecution because this claim inherently
relies on his decision to prosecute Moore, which is
absolutely protected by prosecutorial immunity. See
Moore, 65 F.3d at 194. This holding implies that Moore
cannot base any claim for damages on Valder’s decision
to prosecute Moore. This implication is supported by
another D.C. Circuit case, in which the plaintiffs could
not bring a malicious prosecution claim against an
Attorney General because “instituting a criminal
action” was both an essential element of the claim and
an absolutely protected activity. Dellums v. Powell,
660 F.2d 802, 805-06 (D.C. Cir. 1981). Although the
D.C. Circuit in Moore concluded that coercing wit-
nesses and disclosing grand jury material are not abso-
lutely protected activity, this activity by itself cannot
‘4 The Court explained that this holding applied to both mali-
cious prosecution and retaliatory prosecution claims based on the
First Amendment. See Dellums, 660 F 2d at 806.
I —
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satisfy the essential elements of a claim for retaliatory
prosecution because that claim requires that Valder
caused Moore’s prosecution. See Dellums v. Powell,
566 F.2d 167, 191 n.65 (D.C. Cir. 1977). While Valder
did initiate and continue the prosecution of Moore,
thereby satisfying one of the elements of retaliatory
prosecution, the D.C. Circuit has made clear that lia-
bility cannot rest on this conduct. Moore, 65 F.3d at 194
(“prosecutorial immunity insulates him from liability for
his unquestionably advocatory decision to prosecute
Moore”). See also Dellums, 660 F.2d at 806 (“[njever
has a prosecutorial official been held liable for causing a
prosecution to be brought”).
Because the doctrine of absolute immunity precludes
Moore from establishing an essential element of his
retaliatory prosecution claim, there is no genuine issue
as to any material fact and Valder is entitled to
judgment as a matter of law. See FED. R. Civ. P. 56(c);
Celotex, 477 U.S. at 323." Even if Moore had evidence
from which a reasonable trier of fact could find that
Valder did coerce witnesses and disclose grand jury
material in order to incriminate Moore, this conduct by
itself could not constitute retaliatory prosecution until
Valder decided to initiate the prosecution of Moore. At
that point, however, Valder’s conduct became ab-
solutely protected, thereby foreclosing a claim for re-
15 The U.S. Supreme Court explained that when a party cannot
establish an essential element of her claim, “there can be ‘no
genuine issue as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s
case necessarily renders all other facts immaterial. The moving
party is ‘entitled to a judgment as a matter of law’ because the
nonmoving party has failed to make a sufficient showing on an
essential element of her case with respect to which she has the
burden of proof.” Celotex, 477 U.S. at 323.
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taliatory prosecution. See Dellums, 660 F.3d 806.
Moore suffered no injury from Valder’s alleged coercion
of witnesses and disclosure of grand jury material until
the fruits of that conduct were used against him before
the grand jury and at trial. Yet, as soon as Valder
began deciding what information to present to the
grand jury and at trial, his conduct became absolutely
protected. See Moore, 65 F.3d at 194 (“Valder’s
decisions regarding what evidence to put before the
grand jury, and in what manner, are advocatory
because they are central to the prosecutor’s task of
‘initiating a prosecution’ and ‘presenting the State’s
case.’”) (citations omitted).
Thus, even though the D.C. Circuit held that some of
Valder’s conduct was not absolutely protected and
remanded that part of the case, what is left of the case
cannot meet the elements of a Bivens claim for retalia-
tory prosecution. This situation resembles that in
Buckley v. Fitzsimmons, 20 F.3d 789 (7th Cir. 1994).
The United States Supreme Court had remanded parts
of the case back to the Seventh Circuit, including
Buckley’s claim that the prosecutors violated his Due
Process rights by coercing two witnesses and paying
them money to implicate Buckley in their statements.
See Buckley v. Fitzsimmons, 509 U.S. 259, 279 (1998).'*
‘©The Supreme Court found that: “The precise contours of
these claims are unclear, and they were not addressed below; we
leave them to be passed on in the first instance by the Court of
Appeals on remand.” Jd. The Supreme Court also held that
the prosecutors’ alleged misconduct, when trying to determine
whether a bootprint at the scene of the crime had been left by
Buckley, was an investigatory rather than a prosecutorial function,
entitled to only qualified immunity, and that the prosecutor’s
allegedly false statements to the press were entitle to only quali-
fied, and not absolute, immunity from Section 1983 liability.
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On remand, the Seventh Circuit found that this conduct
was not entitled to absolute immunity because the
interrogation and payments occurred early in the
investigation, before the prosecutors were functioning
as advocates. See Buckley, 20 F.3d at 794. When the
Court proceeded to the question of whether coercing
witnesses to incriminate Buckley was entitled to quali-
fied immunity, the Court concluded that such conduct
did not violate any clearly established right of Buckley
and dismissed the claim based on that conduct. Jd. at
794-95.
The Court noted that while the prosecutors’ coercion
could violate the constitutional rights of the witnesses,
it did not violate Buckley’s right and did not give him a
claim against the prosecutors. Jd. at 194-95. The Court
explained:
[I}f the constitutional entitlement is the right to
prevent use of the [coerced] confession at trial (or
before the grand jury), then absolute immunity
under Jmbler defeats Buckley’s claim. Obtaining
the confessions is not covered by immunity but does
not violate any of Buckley’s rights; using the con-
fession could violate Buckley’s rights but would be
covered by absolute immunity. Because the “reli-
ability” aspect of coerced-confession law is an
element of trial practice . . . the only way Buckley
can establish a violation of the Constitution is to
plead himself out of court. Prosecutors are entitled
to absolute immunity for actions as advocates before
the grand jury and at trial even if they present
unreliable or wholly fictitious proofs.
Id. at 795 (citations omitted) (emphasis added). For
similar reasons, Moore cannot base a retaliatory prose-
85a
cution claim upon Valder’s alleged coercion of witnesses
and disclosures of grand jury testimony to witnesses
without pleading himself out of court. To establish the
claim, Moore must show that Valder wsed the witness
statements procured through this wrongful condet in
the grand jury and trial proceedings in order to prvse-
cute Moore in retaliation for his criticism of USPS.
However, as soon as Moore alleges this, he confronts
the absolute immunity doctrine which effectively
prohibits his claim.
Finding that absolute prosecutorial immunity pre-
cludes Moore from establishing an essential element of
a Bivens claim for retaliatory prosecution against
Valder, the Court does not address the merits of
Valder’s qualified immunity defense. The Court grants
Valder’s motion for summary judgment and denies
Moore’s Motion To Clarify Order of September 16,
1996, Staying Discovery as moot.”
C. The Remanded Bivens Claim of Retaliatory
Prosecution Against the Postal Inspectors
On September 24, 1993, this Court dismissed the
Bivens claims against the postal inspectors on the
grounds that Moore’s complaint had not met a height-
ened pleading standard. On appeal, the D.C. Circuit
concluded that this Court should have decided if the
This Order granted defendant postal inspectors’ motion to
stay discovery to permit them to file a motion for summary
judgment based on the D.C. Circuit’s opinion in Crawford-El II.
Moore’s motion asked the Court to clarify whether this Order
applied to Valder or whether discovery could proceed on Moore’s
claims against Valder. In light of the Court’s grant of summary
judgment in favor of Valder, the issue of whether discovery can
proceed against Valder is moot and the motion is thus denied.
86a
Bivens claims alleged violations of clearly established
law before it reached the heightened pleading standard
issue. See Moore, 65 F.3d at 195. The D.C. Circuit then
held that it was snot clearly established that malicious
prosecution violates any constitutional or statutory
right and affirmed the dismissal of Moore’s malicious
prosecution claim against the postal inspectors. See id.
at 195-96. However, the Court of Appeals reversed the
dismissal of Moore’s retaliatory prosecution claim,
finding that retaliation for speech protected by the
First Amendment violates a clearly established right.
It also found that Moore met the Circuit’s two-level
heightened pleading standard, articulated in Kartseva
v. Dep't of State, 37 F.3d 1524, 1530-31 (D.C. Cir.
1994). See id. at 196.
This Court acknowledges the D.C. Circuit’s finding
that retaliatory prosecution violates a clearly estab-
lished right, but revisits its finding that Moore met the
heightened pleading standard in Kartseva in light of
intervening D.C. Circuit precedent and the higher evi-
dentiary burden required by Federal Rule of Civil
Procedure 56. The two-level heightened pleading
standard articulated in Kartseva for claims involving
In Kartseva, the D.C. Circuit explained the two levels as
follows:
The first level applies to all Bivens or § 1983 claims and
demands that plaintiffs plead the fects surrounding the alleged
violation with sufficient “detail{] to enable the district court to
decide at the outset whether [the] action may proceed to
discovery and trial” over a qualified immunity defense. The
second level of our heightened pleading standard applies only
to claims in which the outcome depends on the defendant’s
state of mind, and it demands direct evidence of intent.
Kartseva, at 130-31 (citations omitted).
87a
unconstitutional motives by government officials that
the D.C. Circuit relied upon in Moore’s appeal has been
replaced by the standards articulated in Crawford-El
II. Consequently, this Court reviews what is left of
Moore’s 108(h) statement and affidavit under the stan-
dards set fort in Crawford-El II to decide whether to
grant the postal inspectors’ motion for summary
judgment on the Bivens claim for retaliatory prosecu-
tion.
According to Crawford-El II, a plaintiff opposing a
summary judgment motion based upon a qualified im-
munity defense with respect to a motive-based consti-
tutional claim must produce “clear and convincing proof
of a defendant’s unconstitutional motive.” Crawford-El
IT, 93 F.3d at 838-39 (Ginsburg, J., concurring). If the
plaintiff cannot meet the “clear and convincing” stan-
dard, the Court should grant summary judgment unless
the plaintiff can show, “based upon such evidence as he
may have without the benefit of discovery and any facts
to which he can credibly attest,” that he has “a rea-
sonable likelihood of turning up evidence that a jury
could consider clear and convincing proof of the defen-
dant’s unconstitutional motive.” Jd. at 841. If Moore’s
evidence against the postal inspectors meets the
reasonable likelihood” standard, the Court will allow
him to pursue “limited discovery.” Jd.
First, the Court asks if Moore can meet the “clear
and convincing” standard. In their motion for summary
judgment, the postal inspectors claim that under this
new standard, Moore cannot establish that they had an
unconstitutional motive, which is an essential element
of a retaliatory prosecution claim. See Haynesworth v.
88a
Miller, 820 F.2d 1245, 1257 n.93 (D.C. Cir. 1987)."° To
overcome the postal inspectors’ summary judgment
motion, Moore must come forward with specific facts
from which a rational trier of fact could find by clear
and convincing evidence that the postal inspectors
possessed the motive of retaliating against Moore for
his criticism of USPS. See Feb. R. Civ. P. 56(e). As
the D.C. Circuit has explained: “[TJhe clear and con-
vincing standard generally requires the trier of fact, in
viewing each party’s pile of evidence, to reach a firm
conviction of the truth on the evidence about which he
or she is certain.” United States v. Montague, 40 F.3d
1251, 1254 (D.C. Cir. 1994) (citations omitted). The
Court applies this standard to the remaining parts of
Moore’s 108(h) statement and affidavit to see if Moore
has sufficient evidence that the postal inspectors pos-
sessed the requisite unconstitutional motive for a
retaliatory prosecution claim.
The Court finds that Moore’s amended 108(h) state-
ment and affidavit establish the following facts with
respect to the issue of motive. Moore voiced his
criticism of USPS directly to USPS management, the
media, and Congress in 1983. Members of USPS man-
The essential elements of a retaliatory prosecution claim
under Bivens are: “first, that the conduct allegedly retaliated
against or sought to be deterred was constitutionally 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.” Haynesworth, 820 F.2d at 1257 n.93 (quoting
Wilson v. Thompson, 593 F 2d 1375 (5th Cir. 1979)). If the plaintiff
can establish these two elements, then the Court should consider a
third: “whether the State has shown by a preponderance of the
evidence that it would have reached the same decision as to
whether to prosecute even had the impermissible purpose not been
considered.” Jd.
89a
agement, specifically PMG Bolger and Bolger’s deputy,
Jellison, were aware of Moore’s criticism. In 1983,
Bolger told Moore to “back off” of his criticism of USPS
management, and Jellison said REI would never get
any multi-line production awards while he was at
USPS. In 1985, Moore lobbied to have Jellison and
Bolger’s successor as PMG, Paul N. Carlin, dismissed
from USPS because of their opposition to REI’s multi-
line technology. That year, USPS began investigating
REI for problems in their procurement process.
The postal inspectors participated in the investiga-
tion of REI and worked with Valder to obtain an
indictment against Moore. The postal inspectors ap-
peared hostile to Moore during the investigation. In the
presence of the postal inspectors, Valder told William
Hittinger that he did not care whether Moore was
guilty or innocent because he needed to establish a good
track record as a prosecutor. The postal inspectors did
not repudiate Valder’s comment. After Moore was
indicted, but before he was tried, the Assistant PMG
for Procurement insisted that Moore be put on leave of
absence from REI, that he be terminated from REI,
that REI not pay his legal fees, that he not be able to
profit from any appreciation in REI stock, and that he
lose all of his CEP perquisites. In response to this
pressure, REI cut Moore’s salary, bonuses, and pri-
vileges.
The Court of Appeals found that “[tJhese facts taken
together constitute evidence sufficient to meet” the
heightened pleading standards articulated in Kartseva
v. Moore, 65 F.3d at 196. As Crawford-El II now
applies to this case, this Court must determine whether
these facts are sufficient to meet the new standard:
whether they constitute clear and convincing evidence
:
§
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ki
90a
of a retaliatory motive by the postal inspectors.
Although Moore’s evidence suggests that Bolger and
Jellison were angry at Moore and were implicitly
threatening him, this evidence does not show that the
postal inspectors were upset with him. The evidence
about Bolger and Jellison suggests that USPS man-
agement disliked Moore’s public criticism of it and may
have had a motive to retaliate against him by pursuing
a baseless investigation and ultimate prosecution of
him. However, while it is possible that management
expressed this motive to the postal inspectors, Moore’s
evidence does not provide clear and convincing evi-
dence that the postal inspectors themselves had a
retaliatory motive.
Second, then, the Court must ask if Moore can show
that he has a “reasonable likelihood of turning up evi-
dence that a jury could consider clear and convincing
proof of the defendant’s unconstitutional motive.”
Crawford-El II, 93 F.3d at 841 (Ginsburg, J. con-
curring). Other facts show that Moore does meet this
Vrawford El II standard for “limited discovery.” Id.
The fact that the postal inspectors report to USPS
management shows that they were likely aware of and
influenced by management’s hostility to Moore and
REI. Moore’s observations of the postal inspectors’
hostility toward him during the USPS investigation
supports this inference. In addition, the postal
inspectors’ failure to repudiate Valder’s comment that
he did not care whether Moore was guilty or not may
mean they were also indifferent to Moore’s innocence.
This reasonable inference is supported by the postal
inspectors’ conduct in coercing Spartin to implicate
Moore even after he had said nineteen times during his
polygraph examination that Moore was not involved,
9la
and their similar attempts to coerce Bray into impli-
cating Moore. The postal inspectors’ concealment of
exculpatory evidence from the grand jury and their
drafting and presentation of misleading witness state-
ments also suggest a desire to get Moore prosecuted
even if he were innocent. Lastly, the fact that the
postal inspectors showed former PMG Carlin secret
grand jury information suggests that they were trying
to help Carlin in his civil case against Moore stemming
from Moore and REI’s efforts to get Carlin dismissed
from USPS.
While these facts do not provide “clear and con-
vincing” evidence that the postal inspectors sought
Moore’s prosecution in order to retaliate against him,
the Court finds that they do show Moore that “a
reasonable likelihood of turning up evidence that a jury
could consider clear and convincing proof” that the
postal inspectors sought to prosecute Moore in retalia-
tion for his public criticism of USPS. Crawford El II,
93 F.3d at 841. The Court will therefore permit
“limited discovery” with respect to Moore’s Bivens
claim for retaliatory prosecution against the postal in-
spectors. Jd. Specifically, the Court will permit dis-
covery tailored to the issue of whether the postal
inspectors had the requisite retaliatory motive based on
Moore’s criticism of USPS.
The Court’s decision to permit limited discovery is
consistent with the D.C. Circuit’s decision to remand
Moore’s retaliatory prosecution claim against the postal
inspectors. See Moore, 65 F.3d at 196. In fact, at a
status conference held in this Court on April 25, 1996,
defense counsel admitted that the D.C. Circuit’s hold-
ings implied that discovery should proceed, stating that
“we fully agree that document production should go
a
SS eae eee 2 es
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forward.” 4/25/96 Hr. Tr. at 20. Magistrate Judge Kay
had even ordered discovery to commence on October
14, 1996, but the decision in Crawford El II required
Staying discovery until this Court could determine
whether the new standards permitted the planned dis-
covery. This Court concludes that discovery is war-
ranted under the new standards and refers this case to
Magistrate Judge Kay to oversee discovery on Moore’
Bivens claim for retaliatory prosecution against the
postal inspectors.
D. The Remanded FTCA Claims Against the
United States
On the basis of the alleged conduct of Valder and the
postal inspectors described above, Moore brought
claims against the United States under the Federal
Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671 et seq.
The FTCA waives the sovereign immunity of the
United States in legal actions based on negligence or
wrongful conduct of federal government employees.
See 28 U.S.C. §§ 2671-2680. This waiver is subject to
certain exceptions, including the “discretionary func-
tion” exception, which insulates the United States
against liability arising out of an act or omission of a
government employee exercising or failing to exercise a
discretionary function. See 28 U.S.C. § 2680(a). On
September 24, 1993, this Court held that Valder and the
postal inspectors’ alleged misconduct fell within the
discretionary function exception and consequently dis-
missed Moore’s FTCA claims for lack of subject matter
jurisdiction.
On appeal, the D.C. Circuit held that “the United
States enjoys immunity from Moore’s claims that
Valder and the postal inspectors pressured witnesses
93a
into incriminating him, concealed and distorted excul-
patory evidence to create a false impression of what he
knew about the fraud schemes and withheld material
exculpatory information from him after the grand jury
returned an indictment.” Moore, 65 F.3d at 197. The
D.C. Circuit a
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