Petition for Writ of Certiorari — Moore v. Valder

—

/ Court, 0.8.

PILED

00-216 AUG 09 2000

No. 00- UrFice OF THE CLERK

iN de RA IEE ORE IORE ST

IN THE

Supreme Court of the Gnited States

WILLIAM G. MOORE, JR.,

Petitioner,

V.

JOSEPH B. VALDER,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

DANIEL H. BROMBERG PAUL M. POHL

JEFFREY S. SUTTON (Counsel of Record)

JONES, DAY, REAVIS & BRYAN D. KOCHER

POGUE JONES, DAY, REAVIS & POGUE

51 Louisiana Avenue, N.W. One Mellon Bank Center

Washington, DC 20001 500 Grant Street, 31st Floor

(202) 879-3939 Pittsburgh, PA 15219

(412) 391-3939

Counsel for Petitioner

ne

i

QUESTION PRESENTED

Respondent is a federal prosecutor. He is charged, among

other things, with intimidating and otherwise manipulating a

grand jury witness into falsely incriminating petitioner in

retaliation for petitioner’s public criticism of the United States

Postal Service. As a result of this misconduct, petitioner was

indicted and subjected to a baseless but nevertheless personally

devastating trial. In 1995, a panel of the United States Court

of Appeals for the District of Columbia Circuit held that

respondent’s intimidation and manipulation of the grand jury

witness was investigatory, not advocatory, misconduct. On

remand, respondent renewed his absolute immunity claim but

styled it as a motion for summary judgment and without

permitting any discovery, the district court granted the motion.

On appeal, a second panei of the D.C. Circuit affirmed, ruling

that absolute immunity bars petitioner’s claim for retaliatory

prosecution even though that claim is based upon investigatory

misconduct. As a consequence, the question presented here is:

Whether respondent is entitled to absolute immunity against

claims for retaliatory prosecution that are based upon

investigatory misconduct.

i

PARTIES TO THE PROCEEDINGS

The parties to the proceedings in the United States Court of

Appeals for the District of Columbia Circuit were petitioner

William G. Moore, Jr., the appellant below; respondent Joseph

B. Valder, an appellee below; and the United States of

America, another appellee below.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..........-------- +00? i

PARTIES TO THE PROCEEDING ........-.------ ii

TABLE OF AUTHORITIES .........-----::-:+°: Vv

So 6 l

JURISDICTIONAL STATEMENT ........--------> 1

STATUTORY PROVISIONS INVOLVED .......--- ]

ES reas rt a ie es 2

A. The Retaliatory Prosecution ........-.---- 3

= ‘The Cramel Trial 2... eee eee 7

C. Petitioner's Claims ..........-------+:> 8

REASONS FOR GRANTING THE WRIT ......---- 1]

I. THE DECISION BELOW DIRECTLY

CONFLICTS WITH THIS COURT’S

DECISION IN BUCKLEY ........-.-------- 12

Il. | THEDECISION BELOW DISREGARDS

THE PRINCIPLES OF OFFICIAL IMMUNITY

FORMULATED BY THIS COURT .......-.-- 15

A. The Decision Below Focuses on the

Status of Respondent Rather than the

Function He Performed .........------- 15

B. The Decision Below Disregards the

Restrictions this Court Has Imposed

Upon Absolute Immunity .........------ 17

1. The Absolute Immunity Afforded

Respondent Lacks Any Common-Law

EE OS ee 18

1V

TABLE OF CONTENTS

(continued)

Page

2. The Absolute Immunity Afforded

Respondent Is Unnecessary and

SL. 8c co pec e eeaa ees 20

C. The Decision Below Ignores

this Court’s Instructions in Crawford-El. ... 23

III. THIS CASE RAISES AN IMPORTANT

AND FUNDAMENTAL ISSUE

WARRANTING REVIEW BY THIS COURT .. 25

REIN on 6 6iy hh KE ee Rea Re A 29

v

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635 (1986) .........-. 20, 26

Antoine v. Byers & Anderson, Inc., 508 U.S.

429 (1993) ......seccsecsssssscseessncccenesrenensesnenennercnsegss 19, 26

Behrens v. Pelletier, 516 U.S. 299 (1996) ...........:5 26

Bivens v. Six Unknown Federal Narcotic

Agents, 403 U.S. 388 (1971) .....-..-: ees 20

Bogan v. Scott-Harris, 523 U.S. 44 (1998) «0... 26

Briscoe v. LaHue, 460 U.S. 325 (1983) .........-..-++ 16, 26

Buckley v. County of DuPage, No. 88 C 1939,

1989 WvL 64321 (N_D. Ill. June 9, 1989) .............--- 12

Buckley v. Fitzsimmons, 502 U.S. 801 tg) ee 13

Buckley v. Fitzsimmons, 919 F.2d 1230

(Tth Cir, 1991) oo... ceseececeesecesseeseseeeeneneetetesennenens 12, 13

Buckley v. Fitzsimmons, 952 F.2d 965

(Tt Cir. 1992) .........secsccccecsesesssseesetererereserenenenees 13, 14

Buckley v. Fitzsimmons, 509 U.S. 259 (1993) ........ passim

Burns v. Reed, 500 U.S. 479 (1991) ......-.:-2:::1++ passim

Butz v. Economou, 438 U.S. 478 (1978) .......-----++ passim

Cleavinger v. Saxner, 474 U.S. 193 (| ee peneaeon 26

Clinton v. Jones, 520 U.S. 681 (1997) ........-..--:-seee 26

Crawford-El v. Britton, 523 U.S. 574 (1998) ......... passim

Crawford-El v. Britton, 93 F.3d 813 (D.C. Cir.

1996), rev'd, 523 U.S. 574 (1998) ..........-.---- 10, 24, 27

Elder v. Holloway, 510 U.S. 510 (1994) .......--.:0+ 20, 26

Forrester v. White, 484 U.S. 219 1(1988) ...... 2, 15, 16, 26

Gomez v. Toledo, 446 U.S. 635 (1980) .........-.--:+ 12, 26

Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26

(1st Cir, 1995) .........ccccecsecsccsssssseeseseeneneneeseessenenennens 16

Harlow v. Fitzgerald, 457 U.S. 800

(1982) nncesesesssssrecosescseeessssnencnsasesensesesserenesencers passim

Hoover v. Ronwin, 466 U.S. 558 (1984)... 26

Hunter v. Bryant, 502 U.S. 224 (1991) .....-:::eeeee 26

vi

TABLE OF AUTHORITIES

(Continued)

Page

Imbler v. Pachtman, 424 U.S. 409 (1976) ............. passim

Johnson v. Jones, 515 U.S. 304 (1995) ........0ccccccccceeee 26

Kalina v. Fletcher, 522 U.S. 118 (1997) ................ passim

Malley v. Briggs, 475 U.S. 335 (1986) ............0.0.... passim

Martinez v. California, 444 U.S. 277 (1980) ....0............ 14

Nawetes ¥V. Wao, SZ U.S. 9 CUGI1). «.......c0ccscsescccssssccness 26

Mitchell v. Forsyth, 472

I iis sa chciandcnssvusvaceudebstncunionnias’ 20, 22, 26

Nixon v. Fitzgerald,

"52'S Oe. a) +) tiveness on a

Pulliam v. Allen, 466 U.S. 522 (1984) .....0.0.00..00ccceee 26

Richardson v. McKnight, 521 U.S. 399 (1997) ......0....... 26

Siegert v. Gilley, No. 90-96 (U.S. July 13, 1990) .......... 26

Siegert v. Gilley, 500 U.S.226 (1991) .....cccccccccccsseveeeeee 26

Tenney v. Brandhove,

341 U.S. 367 (1951) ............ bij ci aslaciidinssiapinaeaanne aida 18

Tower v. Glover,

re WO I iii asics clensaciicrones 18, 26

United States v. Lanier, 520 U.S. 259 (1997) ......00..00.... 26

Westfall v. Ervin, 484 U.S. 292 (1988) .........0..0.00ce 26

Wilson v. Layne, 526 U.S. 603 (1999) «0.000.000 26

Statutes

I MD ais cacrecipbocnkapes cdnsiadenstienassdicetek ]

Ses IT OO dessins kis suis edbrdedsaaleeciosessars doidnalcnc 8

I MI 5b candi Laucsn cas sGupsokiwannabsnbdaiaksins thwed 1,18 ;

Miscellaneous |

Richard H. Fallon, Jr., et al., Hart & Wechsler’s , |

Tne Federal Courts and the Federal System |

0 5 ONS E e Coeee ear 25

vil

TABLE OF AUTHORITIES

(Continued)

Peter J. Henning, Prosecutorial Misconduct and

Constitutional Remedies, 77 Wash. U. L.Q.

T13 (1999) .......ccecssscescsscssersensscensenesenenensorsssssereneneeaes 27

McGee, Grand Jury Shielded from the Facts: A

Defendant’s Nightmare, The Washington Post,

Jame, 12, 1993 ........csc.cseiscsscesseressessnsnsenesesnenenessssnseees 3

Office of Technical Assessment, |

Review of Postal Automation Strategy

(June 1984) .........-::eeeeeeeeeeees Fa eR pear sme 4

Cornelia T.L. Pillard, Taking Fiction Seriously:

The Strange Results of Public Officials’ Individual

Liability under Bivens, 88 Geo. L.J. 65 (1999) ........ 27

Petition for Certiorari Butz v. Economou,

No. 76-709 (U.S. Nov. 19, 1976) ......-::::eeeee 26

Petition for Certiorari Clinton v. Jones,

No. 95-1853 (U.S. May 15, 1996) ......-----e eee 26

Petition for Certiorari

Eastland v. United States Servicemen’s

Fund, No. 73-1923 (U.S. Dec. 6, 1974) ......-.-.-.--» 26

Petition for Certiorari Elder v. Holloway,

No. 92-8579 (U.S. Apr. 19, 1993) ......---::s ee 26

Petition for Certiorari Hunter v. Bryant,

No. 90-1440 (U.S. Mar. 12, 1991) ......---.-eeeeee 26

Petition for Certiorari Hutchinson v. Proxmire,

No. 76-680 (U.S. Oct. 20, 1978) .......--:-.-e eee 26

Petition for Certiorari McFarlin v. Sparkman,

No. 76-1750 (U.S. June 8, 1977), cert.

granted sub nom. Stump v. Sparkman, 434

U.S.815 (1977) .......-csceccssesceseeneeeceeesseenenereessneeessnsens 26

Restatement (Second) of Torts § 653 (1979) .........- 14

ee eee

PETITION FOR A WRIT OF CERTIORARI

William G. Moore, Jr., respectfully petitions for a writ of

certiorari to review the judgment of the United States Court of

Appeals for the District of Columbia Circuit in this case.

OPINIONS BELOW

~ The opinion of the United States Court of Appeals for the

District of Columbia Circuit that is the subject of this petition

(App. la-14a) is reported at 213 F.3d 705. The order and

memorandum opinion of the United States District Court for

the District of Columbia from which that appeal was taken

(App. 30a-77a) is unreported. The district court's memo-

randum opinion denying reconsideration (App. 15a-29a) is

also unreported. An opinion from a prior appeal, (App. 78a-

93a) is reported at 65 F.3d 189, and the district court decisions

from which that appeal was taken are reprinted in the appendix

to respondent's petition for certiorari, which this Court denied.

See 519 U.S. 820 (1996).

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeals for the

District of Columbia Circuit was issued on June 2, 2000. This

Court has jurisdiction over this petition under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

The text of 42 U.S.C. § 1983 is reprinted in its entirety at

App. 126a.

STATEMENT

As this Court has recognized, when public officials are sued,

courts must strike a delicate “balance between the evils

2

inevitable in any available alternative.” Harlow v. Fitzgerald,

457 U.S. 800, 813-14 (1982). Although suits against public

officials impose costs upon public officials and can interfere

with the discharge of their public duties, such suits also benefit

the public by compensating victims of official misconduct,

deterring abuses of office, and demonstrating that all public

officials are subject to the law. This Court has therefore

afforded public officials immunity based not upon the positions

that they hold, but upon the public’s interest in the functions

they perform. In addition, while this Court has held that all

public officials performing discretionary functions enjoy

qualified immunity, see id. at 818, it has been "quite sparing in

its recognition of claims to absolute immunity" and has refused

to extend such immunity further than necessary to protect the

conduct of public business. Forrester v. White, 484 U.S. 219,

224 (1988); see Butz v. Economou, 438 U.S. 478, 507 (1978).

Accordingly, this Court has repeatedly held that prosecutors

enjoy absolute immunity while performing “advocatory”

functions intimately related to the judicial process, but only

qualified immunity while performing “investigatory” functions.

See Kalina v. Fletcher, 522 U.S. 118 (1997); Buckley v.

Fitzsimmons, 509 U.S. 259 (1993); Burns v. Reed, 500 U.S.

479 (1991); Imbler v. Pachtman, 424 U.S. 409 (1976).

The decision below ignores these decisions and the overall

framework that this Court has established for official immunity

questions. Although the court of appeals recognized that

petitioner’s retaliatory prosecution claim against respondent

was based upon investigatory conduct, it nonetheless held

respondent absolutely immune from that claim due to his status

as a prosecutor. App. 7a-8a. This decision ignores the

principles underlying this Court's immunity decisions. Indeed,

the decision below adopts the very position that this Court

rejected seven years ago in Buckley v. Fitzsimmons. As a

consequence, that decision casts doubt upon the willingness of

3

the court of appeals in the circuit in which the federal

government sits to recognize the limitations this Court has

imposed upon official immunity and to entertain meritorious

claims against federal officials.

A. The Petitioner’s Retaliatory Prosecution Claim.

In the mid-1980s, petitioner William G. Moore, Jr., became

embroiled in a public dispute with the United States Postal

Service (USPS) over automation technology. In the course of

this dispute, petitioner publicly criticized the USPS, lobbied

Congress, and fueled a controversy that resulted in the

dismissal of high-ranking USPS officials. Although the Postal

Service eventually adopted the technology advocated by

petitioner, thereby saving the public millions of dollars a day,

it offered him no thanks. Instead, in an abuse of government

power that has formed the basis for significant inquiries by the

press, see, e.g., McGee, Grand Jury Shielded from the Facts:

A Defendant's Nightmare, The Washington Post, Jan. 12, 1993

at Al (J.A. 876-82), respondent, an Assistant United States

Attorney, and the postal inspectors under his supervision

conducted a vindictive criminal investigation culminating in an

unwarranted indictment that destroyed petitioner's company

and his career.

1. The Scanner Controversy—In the early 1980s,

petitioner was a successful businessman in the high tech field.

In 1982, he became the chief executive officer of Recognition

Equipment, Inc. (“REI”), a foundering company laden with

out-moded products and debt. J.A. 811-12. Within a year,

however, petitioner was able to make REI profitable again,

simultaneously jettisoning unprofitable lines and building

company morale, and he was honored as the Dallas/Ft. Worth

Businessman of the Year, elected chairman of the American

Electronics Association, and named to the Board of Regents at

Georgetown University. J.A. 812-14, 830.

4

Although REI had, with the aid of USPS research funds,

developed multi-iine optical character readers able to sort mail

down to the carrier level, J.A. 816, petitioner initially

considered disbanding the company’s postal engineering group

because the company had strained relations with the Postal

Service and had never received a production contract from it.

J.A. 137, 544, 815-17. Petitioner decided, however, to retain

the group at the urging of Postmaster General Bolger and other

high-level USPS officials in 1982. J.A. 815-16. When Bolger

announced a year later that the Postal Service would purchase

only single-line scanners, petitioner complained that this

decision was unsound and that he had been misled. J.A. 816-

17. Relations with the Postal Service became acrimonious.

Bolger told petitioner to “back off,” and another high-ranking

official said REI would never receive a production award if he

had anything to do with it. J.A. 816-17.

Petitioner did not, however, back off. Instead, he went

public, launching a media campaign, lobbying Congress, and

attacking the USPS decision to rely upon _ single-line

technology in public hearings before congressional committees.

J.A. 546, 817, 831-36. As a result of this effort, the Postal

Service’s adoption of single-line scanners became a “subject

of significant public debate involving executive studies,

legislative inquiries, and broad media exposure.” App. 100a.

Eventually, the better technology prevailed, and the Postal

Service adopted multi-line scanners. App. 118a.; see also

Office of Technical Assessment, Review of Postal Automation

Strategy 2 (June 1984) (discussing the technological

superiority of multi-line scanners) Moreover, as a result of this

decision, high-ranking USPS officials, including Bolger’s

successor as postmaster general, Paul Carlin, were removed.

App. 117a-19a.

2. The Investigation—Although petitioner’s company was

the only American producer of multi-line scanners suitable for

use by the Postal Service, REI never received a production

5

contract from the USPS. Instead, petitioner and his company

were ruined by an unwarranted criminal investigation that

ended in their indictment and trial.

The investigation arose out of petitioner’s retention of a

consulting firm at the suggestion of Peter Voss, a member of

the Postal Service Board of Governors. App. 99a. Although

the consulting firm was conversant with optical scanning

technology, had excellent political contacts, and represented

major clients, it also had a darker side: unbeknownst to

petitioner, it was involved in a kickback scheme with Voss.

App. 99a, 103a-05a.

Though the conspirators entered into plea or immunity

agreements with the Government, respondent and the postal

inspectors were unable to uncover any evidence showing that

petitioner even knew of the kickback scheme. App. 35a, 112a-

13a. Quite the contrary, each of the conspirators denied that

petitioner and his company had any knowledge of the scheme.

App. 112a. At this point, respondent, as the prosecutor

supervising the investigation, should have reined in the postal

inspectors and terminated the investigation. Instead, he joined

in the Postal Service’s vendetta against petitioner and

persuaded a grand jury to indict petitioner by departing from

the high standards normally observed by federal law

enforcement personnel and engaging in a shocking pattern of

misconduct.’

The Witness Statements—When witnesses appear before a

grand jury, they normally answer questions posed to them.

' Respondent explained one of his incentives to grand jury witness

William Hittinger, a former REI director and former president of Lehigh

University: “the merits of the case [against petitioner] or whether the

persons involved were guilty or not did not concern him”; respondent

wanted to prosecute petitioner successfully “to get a track record or some

notoriety which would help him obtain a good position in private

practice.” J.A. 732.

6

When the participants in the kickback scheme appeared before

the grand jury, however, respondent did not permit them to

testify directly to the grand jury and possibly repeat that

petitioner was unaware of the scheme. Instead, respondent and

the postal inspectors under his supervision wrote “witness

statements” that omitted key exculpatory evidence and

recounted selected facts in an incriminating fashion, and these

statements were read by respondent to the grand jury while the

“witnesses” sat in the witness chair before the grand jury. App.

2a, J.A..440, 582-86.

When one witness objected to the statement written for him,

respondent and the postal inspectors refused to revise it. J.A.

553-59. Morever, after the witness was induced to sign the

statement on the condition that he be permitted to tell the

grand jury that petitioner did not know about the kickbacks,

respondent reneged on the deal and did not permit the witness

to give testimony exculpating petitioner before to grand jury.

J.A. 560-61.

The Spinning of William Spartin—When one of the

conspirators, William Spartin, was first interviewed, he offered

no evidence suggesting that petitioner was aware of the

kickback scheme. J.A. 609-10, 613, 669. Six months later,

respondent and the postal inspectors lowered the boom. With

ten or so postal inspectors surrounding Spartin, who suffered

from a heart condition and was under psychiatric care,

respondent accused Spartin of lying and literally tore up his

immunity agreement in a premeditated intimidation tactic. J.A.

440, 601-04, 801. Respondent also threatened to subpoena

and prosecute Spartin’s son if Spartin refused to play ball. J.A.

644. Respondent then shifted gears and (in violation of grand

jury secrecy rules) showed Spartin the grand jury witness

statements that had been scripted for his co-conspirators. J.A.

607-26, 801.

Despite this pressure, Spartin continued to maintain that he

had no knowledge that petitioner was aware of the kickback

7

scheme. Indeed, during a polygraph examination that he

passed, Spartin repeated this key point nineteen times. App

36a; J.A. 609-43. Spartin wanted, however, to help. At one

point during his polygraph examination, he said, “It’s so bad.

_ I want to help, I just don’t know how, that’s the problem.”

J.A. 642. Ultimately, he was able to do so by offering an

opinion based upon the grand jury witness statements shown to

him that REI knew about the kickback payments:

Being paid, no sir, I don’t. I have no knowledge of that at

all. . . But, you know, J read that goddam testimony and

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

me to hang REI from the yardarm.

J.A. 621(emphasis added). Spartin later repeated this opinion

to the grand jury, but without the caveats about his lack of

personal knowledge. J.A. 453.

Other Misconduct—tIn addition to coercing Spartin and

misleading the grand jury, respondent engaged in other

misconduct, including failing to disclose Spartin’s highly

exculpatory polygraph examination at trial. J.A. 666-92. Most

tellingly, respondent and the postal inspectors also disclosed

confidential witness statements and lab test results to Paul

Carlin, the former Postmaster General who lost his job in part

due to petitioner’s activities. App. 3a, 38a. Postal inspectors

also shared a draft indictment with Carlin, who later filed a

multi-million dollar claim against petitioner. App. 3a.

B. The Criminal Trial.

Petitioner was indicted, along with REI and another

company executive, in October 1988. App. 3a. Once trial

began, however, the case built by respondent and the postal

inspectors collapsed like a house of cards. After respondent

presented the Government’s case for six weeks, the district

court granted petitioner’s motion to acquit, concluding that the

Government had failed to establish a prima facie case of

8

petitioner’s awareness of the kickback scheme. App. 3a; 94a-

126a.

Despite this acquittal, the trial was a catastrophe for

petitioner and his company. As respondent and the postal

inspectors contemplated, the indictment forced REI’s

debarment from government contracting, and the key contracts

for the USPS’s giant procurement of multi-line scanners were

awarded to a competitor. As a result, REI's stock plummeted,

there was a hostile takeover, and petitioner lost his job. J.A.

819-20, 823-29. Even worse, due to his indictment, petitioner

found that he was no longer considered a viable candidate for

high-level positions at publicly-traded companies. J.A. 819-

20.?

C. Petitioner’s Claims.

In November 1991, petitioner sued respondent and the

postal inspectors in the Northern District of Texas for, among

other things, prosecuting him in retaliation for exercising his

First Amendment rights to criticize the Government and to

petition Congress. J.A. 68-93. After the claims against

respondent were dismissed on grounds of absolute immunity,

the case was transferred to the District of Columbia along with

a separate complaint against the Government under the Federal

Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seg. App. 79a-

80a. Although the postal inspector’s initial motion to dismiss

had been denied by the Texas court, the D.C. district court

(Johnson, J.) allowed a second motion and dismissed

petitioner's remaining claims. App. 80a-81a.

The Initial Appeal — On appeal, the D.C. Circuit reinstated

several of petitioner’s claims against respondent, including a

? By contrast, respondent suffered no repercussions from his misconduct.

Although a complaint was filed by Robert 5. Bennett, Charles A.

Stillman, and other defense attorneys with the Department of Justice, no

disciplinary action was ever taken against him. J.A. 648-53, 773-74.

9

retaliatory prosecution claim. Although the court of appeals

held respondent absolutely immune from claims based upon

some conduct, it found that absolute immunity did not bar

claims based upon the coercion of William Spartin and the

unauthorized disclosure of grand jury testimony. App. 86a-

88a. “Intimidating and coercing witnesses into changing their

testimony,” the court reasoned, “is not advocatory.” App. 86a-

87a. Such misconduct is instead a “misuse of investigative

techniques” used to gather information that might be used in a

prosecution, a “typical police function.” App. 87a. The court

of appeals also found that the unauthorized disclosure of grand

jury materials is not protected by absolute immunity because it

“has no functional tie to the judicial process.” App. 87a-88a.

In addition, the D.C. Circuit reinstated some of petitioner’s

claims against the postal inspectors and against the

Government. Specifically, the court held that the postal

inspectors’ alleged procurement of petitioner’s prosecution in

retaliation for the exercise of his First Amendment rights

violated a clearly established constitutional right and that

petitioner’s retaliatory prosecution claim was therefore not

barred by qualified immunity. App. 90a. The court also

reinstated petitioner’s claim against the Government based

upon the unauthorized disclosure of grand jury testimony.

App. 92a-93a.

Though his separately retained counsel, respondent filed a

petition for certiorari, which this Court denied. See 519 U.S.

820 (1996).

The Remand—On remand, respondent and the other

defendants initially acknowledged that the case should proceed

into discovery. The district court, however, suspended

discovery sua sponte in light of Crawford-El v. Britton, 93

F.3d 813 (D.C. Cir. 1996) (en banc), rev'd, 523 U.S. 574

(1998), and entertained motions from respondent and the

postal inspectors for summary judgment based upon that

decision. Although, as petitioner urged in an amicus brief, this

10

Court vacated the D.C. Circuit’s decision in Crawford-El, see

523 U.S. at 601, the district court nonetheless dismissed the

claim against respondent based upon an absolute immunity

argument respondent had raised unsuccessfully in the prior

appeal. App. 52a-56a. In the district court’s view, absolute

immunity barred petitioner’s retaliatory prosecution claim

because it necessarily rested on respondent’s decision to

prosecute. App. 53a-54a. In so ruling, the district court

denied petitioner’s Rule 56(f) affidavit requesting that summary

judgment be deferred until after discovery. The district court

also dismissed petitioner’s claims against the Government.

App. 62a-76a. *

The Decision Below—On appeal, a new panel reinstated

petitioner’s malicious prosecution claim against the

Government. It found that petitioner had stated a valid claim

by alleging that his prosecution was procured by the

unauthorized disclosure of grand jury testimony to Sparting

which in turn led Spartin to incriminate petitioner before the

grand jury and the grand jury in turn to indict. App. 12a. The

panel also, however, affirmed the dismissal of petitioner’s

retaliatory prosecution claim against respondent based upon

absolute immunity. App. 8a.

if

> The district court denied the postal inspectors’ motion for summary

judgment because it found that, even prior to discovery, petitioner had

presented sufficient evidence of a retaliatory motive to survive summary

judgment. App. 61a-62a. Subsequent discovery has uncovered several

“smoking guns” confirming this inference. For example, one document

apparently prepared by the postal inspectors and circulated to respondent

lists REI’s “fund[ing] a media and political campaign to discredit USPS

management and cause financial harm to USPS” as the first reason for

indicting the company. App. 127a-30a. Another document entitled

“Details of the Offense” faults petitioner for his efforts to “undermine the

[USPS] competitive testing program via the media and Congress.” App.

13 la-33a.

11

The panel held that respondent was absolutely immune from

petitioner’s retaliatory prosecution claim because he was a

prosecutor. While acknowledging that this Court has

“extended only qualified immunity to prosecutors acting in an

investigatory fashion,” the panel nevertheless declared that a

prosecutor “could not be held liable for causing a prosecution

to be brought.” App. 7a (quotation omitted). In response to

petitioner’s protest that this ruling ignores the distinction

between advocatory and investigatory conduct, the lower court

simply noted “there are potential causes of action against

prosecutors that do not rely on the decision to prosecute” such

as a “violation of the Fourth Amendment.” App. 7a-8a; see

also App. 8a n.3 (rejecting petitioner’s request for discovery).

REASONS FOR GRANTING THE WRIT

Though terse, the decision below contains an all-out

rebellion against this Court’s official immunity decisions.

Indeed, the rationale adopted below manages simultaneously

to reject the functional approach this Court has applied to

official immunity claims in general, ignore the specific

restrictions this Court has imposed on the use of absolute

immunity, and disregard this Court’s instructions in Crawford-

El v. Britton, 523 U.S. 574 (1998), on imposing new barriers

to recovery in civil rights cases and on the availability of

discovery in such suits. Moreover, the decision below also

adopts the very position that this Court rejected in Buckley v.

Fitzsimmons, 509 U.S. 259 (1993). As a consequence, this

decision not only casts doubt upon the willingness of the court

of appeals in the nation’s capital to consider meritorious claims

against federal officials; it also directly challenges the authority

of this Court. Because of the evident importance of these

issues, this case merits the attention of this Court.

12

I. THE DECISION BELOW DIRECTLY CONFLICTS

_ WITH THIS COURT’S DECISION IN BUCKLEY.

The decision below casually dismissed this Court’s

prosecutorial immunity decisions with the suggestion that they

concerned “potential causes of action against prosecutors that

do not rely upon the decision to prosecute.” App. 7a-8a. In

fact, this Court has refused to formulate special immunity rules

based upon the nature of the claim before it. See, e.g.,

Crawford-El, 523 U.S. at 593; Gomez v. Toledo, 446 U.S.

635, 639-40 (1980). Even more importantly, in Buckley v.

Fitzsimmons, this Court rejected the very position adopted by

the decision below.

Much like petitioner, the plaintiff in Buckley brought

malicious prosecution and related constitutional claims against

prosecutors based upon the prosecutors’ alleged fabrication of

evidence. The plaintiff claimed that, in order to obtain his

indictment for a highly publicized murder, the prosecutors

retained an anthropologist “well known for her willingness to

fabricate unreliable expert testimony.” 509 U.S. at 262.

Although law enforcement experts were unable to make a

reliable connection between the plaintiff and a bootprint found

at the victim’s house, the anthropologist made a positive

identification of plaintiff based upon the bootprint both before

the grand jury and at a subsequent criminal trial. See id. at

262-64. Nonetheless, the jury was unable to reach a verdict,

and after the anthropologist passed away and the charges were

dtopped, the plaintiff sued. See id. at 261-62, 264; Buckley v.

County of DuPage, No. 88 C 1939, 1989 WL 64321, at *1

(N.D. Ill. June 9, 1989).

On appeal, the Seventh Circuit held that the prosecutors

were absolutely immune from claims based upon the alleged

fabrication of the bootprint evidence. See Buckley v.

Fitzsimmons, 919 F.2d 1230 (7th Cir. 1991). The court

reasoned that the prosecutors enjoyed absolutely immune

because the injury alleged in those claims “flows from the

13

initiation or prosecution of the case.” 919 F.2d at 1233, 1240-

41. After this Court held that absolute immunity does not

protect investigatory conduct by prosecutors, see Burns v.

Reed, 500 U.S. 478 (1991), the Seventh Circuit’s initial

decision was vacated. See Buckley v. Fitzsimmons, 502 U.S.

801 (1991). On remand, the Seventh Circuit reaffirmed its

prior ruling that the prosecutors were protected by absolute

immunity against claims for malicious prosecution whether or

not those claims are based upon investigatory conduct. See

Buckley v. Fitzsimmons, 952 F.2d 965, 966-67 (7th Cir. 1992)

(per curiam). Prosecutors, the court of appeals held, are

entitled to absolute immunity against claims based upon such

conduct unless “the act of gathering and evaluating evidence

independently violates someone’s rights (as, for example, by

seizing persons or things in violation of the fourth

amendment).” Jd. at 967.

This Court reversed, rejecting the Seventh Circuit’s

“unprecedented theory” that the prosecutors enjoyed absolute

immunity because “the injuries suffered by [Buckley] occurred

during criminal proceedings.” Buckley, 509 US. at 265, 271-

72. Under this Court’s immunity decisions, the focus is “on the

conduct for which immunity is claimed, not on the harm that

the conduct may have caused or the question whether it was

lawful.” Id. at 271. As a consequence, while the location of a

plaintiff s injury may be relevant in determining whether that

plaintiff has stated a valid claim, it is “irrelevant . . . to the

question whether the conduct of a prosecutor is protected by

absolute immunity.” Jd. at 272. Finding that the alleged

fabrication of the bootprint was investigatory in nature, this

Court held that the prosecutors were not protected by absolute

immunity. See id. at 272-76.

As Justice Kennedy recognized, this ruling permits

prosecutors to be sued for malicious prosecution claims if

those claims are based upon investigatory conduct. Under this

Court’s decision in Buckley, Justice Kennedy observed, “no

14

longer is 2 claim for malicious prosecution subject to ready

dismissal on absolute immunity grounds, at least where the

claimant is clever enough to include some actions taken by the

prosecutor prior to the initiation of prosecution.” Buckley, 509

U.S. at 287 (Kennedy, J., concurring in part and dissenting in

part). Thus, even though malicious prosecution is in many

ways the “classic case for the invocation of absolute

immunity,” under this Court’s decision in Buckley, a malicious

prosecution claim based upon investigatory misconduct “falls

on the unprotected side ofthe Court’s new dividing line.” Jd.

The decision below cannot be reconciled with Buckley and,

in fact, adopts a theory that is functionally equivalent to the

“unprecedented theory” rejected in that decision. According

to the decision below, a prosecutor may not “be held liable for

causing a prosecution to be brought.” App. 7a (quotation

omitted). Under the Seventh Circuit “unprecedented theory,”

prosecutors are absolutely immune from all claims based upon

injuries flowing from prosecution. An individual cannot,

however, be held liable for the injury flowing from a

prosecution unless that individual also proximately caused the

prosecution, see, e.g., Restatement (Second) of Torts § 653

(1979); see also Martinez v. California, 444 U.S. 277, 284-85

(1980) (applying the proximate cause requirement to

constitutional torts), and conduct causing a prosecution to be

brought causes the injuries flowing from that prosecution. As

a consequence, the Seventh Circuit’s location-of-injury theory

and the causation theory adopted below are simply two sides

of the same coin—which is no doubt why both the Seventh

Circuit and the decision below relegated the distinction

between advocatory and investigatory conduct to tort claims

that are completely independent of prosecution. Compare

App. 7a-8a with Buckley, 952 F.2d at 967.

SS

15

Il. THE DECISION BELOW DISREGARDS THE

PRINCIPLES OF OFFICIAL IMMUNITY FOR-

MULATED BY THIS COURT.

In addition to contradicting the specific holding in Buckley,

the decision below also conflicts more generally with this

Court’s opinions on official immunity. Indeed, the decision

below ignores the basic approach that this Court has taken

toward official immunity, the specific restrictions that this

Court has imposed upon absolute immunity, and this Court’s

instructions on discovery in Crawford-El. In short, the

decision below is fundamentally at odds with the decisions of

this Court.

A. The Decision Below Focuses on the Status of Res-

pondent Rather than the Function He Performed.

As this Court has stressed, official immunity “is not

grounded in any special ‘esteem for those who perform these

functions [protected by immunity], and certainly not from a

desire to shield abuses of office.” Kalina v. Fletcher, 522 US.

118, 127 (1997) (quoting Malley v. Briggs, 475 U.S. 335, 342

(1986)). To the contrary, respect for the rule of law demands

that “all individuals, whatever their position in government, are

subject to federal law.” Butz v. Economou, 438 U.S. 478, 506

(1978); see also Forrester v. White, 484 U.S. 219, 223 (1988)

(acknowledging the “undeniable tension between official

immunities and the ideal of the rule of law’). Accordingly,

under the decisions of this Court, official immunity is

predicated upon the public’s interest in protecting the proper

functioning of government. See, e.g., Burns, 500 U.S. at 494

(noting that absolute prosecutorial immunity is “designed to

free the judicial process from the harassment and intimidation

associated with litigation”) (citation omitted). In short, official

immunity is “justified and defined by the functions it protects

and serves, not by the person to whom it attaches.” Forrester,

484 US. at 227.

16

In keeping with these bedrock principles, this Court has

“applied a functional approach” to immunity that “looks to the

function performed, not the identity of the actor who

performed it.” Forrester, 484 U.S. at 229; see also Briscoe v.

LaHue, 460 U.S. 325, 342 (1983) (“[O]ur cases clearly

indicate that immunity analysis rests on functional categories,

not on the status of the defendant.”). Thus, while the needs of

the judicial process require that prosecutors enjoy absolute

immunity while performing advocatory functions that are

intimately related to that process, see Jmbler v Pachtman, 424

U.S. 409, 420-31 (1976), they do not justify affording

prosecutors absolute immunity when they act as complaining

witnesses or engage in investigatory functions removed from

the judicial process. See Kalina, 522 U.S. at 129-30; Buckley,

509 U.S. at 272-76. Moreover, this Court has consistently.

refused to afford absolute immunity to non-advocatory

functions performed by prosecutors simply because they are

related to the prosecutor’s advocatory functions. See Kalina,

522 U.S. at 509-10; Buckley, 509 U.S. at 275-76; Burns, 500

U:S. at 494; see also Guzman-Rivera v. Rivera-Cruz, 55 F.3d

26, 29 (ist Cir. 1995) (“[T]he prosecutorial nature of an act

does not spread backwards like an inkblot, immunizing

everything it touches.”).

The decision below disregards the functional approach that

this Court has taken to official immunity and the principles

underlying it. The decision did not afford respondent absolute

immunity based upon the function he was performing when

engaged in the misconduct alleged by petitioner, which the

prior panel properly found was not advocatory in nature. App.

86a-88a. Instead, the decision below found that respondent

enjoyed absolute immunity from any claim for causing a

prosecution to be brought simply because he was a prosecutor.

As the decision acknowledged, under its rationale “the only

official who could not be held liable for malicious or retaliatory

prosecution is the prosecutor.” App. 7a n.2. This position is

repugnant to the rule-of-law principles that: underlie this

17

Court’s official immunity decisions because it affords

prosecutors absolute immunity based not upon the function

that they perform in the judicial process, but upon their status

as prosecutors.

Indeed, the decision below creates the very disparity that the

functional approach to official immunity was designed to

eliminate. As this Court has admonished, “[w]hen a prosecutor

performs the investigative functions normally performed by a

detective or police officer, it is neither appropriate nor

justifiable that, for the same act, immunity should protect the

one and not the other.” Buckley, 509 U.S. at 273 (quotation

omitted); see also id. at 276 (“When the functions of

prosecutors and detectives are the same . . . the immunity that

protects them is also the same.”). The decision below,

however, affords respondent absolute immunity from claims for

malicious prosecution arising out of investigatory misconduct

in which respondent engaged side-by-side with postal

inspectors, even though the postal inspectors enjoy only a

qualified immunity (which has been overcome in this case)

against such claims. Notably absent from the decision below

is any attempt to reconcile this result either with this Court’s

admonition or with the rule-of-law concerns that underlie it.

B. The Decision Below Disregards the Restrictions this

Court Has Imposed upon Absolute Immunity.

In addition to ignoring the principles underlying this Court’s

official immunity decisions, the decision below also ignores the

restrictions this Court has imposed upon absolute immunity.

This Court has been “quite sparing in [its] recognition of

absolute immunity and ha[s] refused to extend it any further

than its justification[s] would warrant.” Burns, 500 U.S. at

486-87 (quotations omitted); see also Butz, 438 U.S. at 507

(noting that absolute immunity is available only in “those

exceptional situations where it is demonstrated that absolute

immunity is essential for the conduct of the public business”).

In particular, this Court has required both a common-law

18

tradition supporting application of absolute immunity and a

showing that such immunity is necessary to protect the judicial

process or any other governmental function. See, e.g., Tower

v. Glover, 467 U.S. 914, 920-21 (1984). The decision below

ignores both requirements.

1. The Absolute Immunity Afforded Respondent Lacks

Any Common-Law Pedigree.

The scope of official immunity in actions against federal

officials under the Constitution is the same as that enjoyed by

state officials under 42 U.S.C. § 1983. See, e.g., Crawford-El,

523 U.S. at 587. On its face, however, Section 1983 “admits

of no defense of official immunity.” Buckley, 509 U.S. at 268.

Accordingly, while this Court has long recognized immunities

“well grounded in history and reason,” which Congress

presumably would not have eliminated silently, Tenney v.

Brandhove, 341 U.S. 367, 376 (1951), it has refused to

recognize any immunity unless the official claiming that

immunity was “accorded immunity from tort actions at

common law when [Section 1983] was enacted in 1871.”

Tower, 467 U.S. at 920-23.

As Justice Scalia has observed, “there generally was no such

thing as the modern public prosecutor” in 1871 when Section

1983’s statutory predecessor was enacted. Kalina, 522 U.S.

at 132 (Scalia, J., concurring). Accordingly, while Jmbler

noted that beginning in 1896 some (but not all) courts began to

afford prosecutors absolute immunity against malicious

prosecution claims, see Imbler, 424 U.S. at 421-22 & n.19; but

see Burns, 500 U.S. at 500-01 (Scalia, J., concurring in the

judgment in part and dissenting in part), this Court looked to

the well-established common-law tradition of affording

absolute immunity to judges, jurors, and others performing

roles critical to the judicial process when it recognized an

absolute immunity for prosecutors. Jmbler, 424 U.S. at 422-24

& n.20, 431. Consequently, while this Court has afforded

absolute immunity to prosecutors “in initiating a prosecution

19

and in presenting the State’s case” and in engaging in other

conduct “intimately associated with the judicial phase of the

criminal process,” id. at 430, it has consistently refused to

extend that immunity to conduct less closely associated with

the judicial process. See Kalina, 522 U.S. at 129-30

(testimony in support of application for arrest warrant);

Buckley, 509 U.S. at 272-76 (fabrication of evidence prior to

establishment of probable cause); id. at 276-78 (statements at

press conference); Burns, 500 U.S. at 492-96 (provision of

legal advice to police).

The decision below does not—and cannot—point to any

common-law antecedent for the absolute immunity it affords to

respondent. As this Court recognized in Buckley, there is no

common-law tradition of affording prosecutors absolute

immunity against claims based upon investigatory misconduct.

See Buckley, 509 U.S. at 275. Moreover, while “complaining

witnesses”—that is, private individuals initiating criminal

prosecutions—enjoyed a form of immunity from suit at

common law, that immunity was qualified rather than absolute.

See Kalina, 522 U.S. at 132-33 (Scalia, J., concurring); see

also Malley, 475 U.S. at 340 (“[C]omplaining witnesses were

not absolutely immune at common law.”).

Nor is the decision below saved by the fact that petitioner

did not cite “cases in which a prosecutor has been held liable

for malicious or retaliatory prosecution.” App. 7a. As this

Court has “consistently emphasized,” it is the official seeking

absolute immunity who “bears the burden of showing that such

immunity is justified for the function in question.” Antoine v.

Byers & Anderson, Inc., 508 U.S. 429, 432 n.4 (1993)

(quotation omitted). As a consequence, contrary to the

suggestion below, “if application of the principle [of

prosecutorial immunity] is unclear, the defendant simply loses.”

Buckley, 509 U.S. at 281 (Scalia, J., concurring) (emphasis

added). Thus, the decision below fails the threshold test for

absolute immunity.

20

2. The Absolute Immunity Afforded Respondent Is

Unnecessary and Unjustified.

The decision below also fails the ultimate test for absolute

immunity because the absolute immunity it would afford to

respondent and all other prosecutors is unnecessary and

unjustified.

As noted above, official immunity demands a balancing of

evils. See Harlow v. Fitzgerald, 457 U.S. 800, 813-14 (1982).

On the one hand, suits against public officials impose costs

upon those officials personally and upon society as a whole in

the form of “the expenses of litigation, the diversion of official

energy from pressing public issues, and the deterrence of able

citizens from acceptance of public office.” /d at 814. In

addition, fear of personal liability can “unduly inhibit officials

in the discharge of their duties” and thereby undermine

governmental processes. Anderson v. Creighton, 483 U.S.

635; 638 (1987); see Harlow, 457 U.S. at 807, 810-11.

On the other hand, suits against public officials also serve

important interests. They can provide victims of official

misconduct with compensation and vindicate their rights. See

Elder v. Holloway, 510 U.S. 510, 515 (1994). Indeed, “[i]n

situations of abuse of office, an action for damages may offer

the only realistic avenue for vindication of constitutional

guarantees.” Harlow, 457 U.S. at 814 (citations omitted); see

also Bivens v. Six Unknown Federal Narcotic Agents, 403

U.S. 388, 410 (1971) (Harlan, J., concurring) (“For people in

Bivens’ shoes, it is damages or nothing.”). Suits against public

officials also help to “deter[ ] public officials’ unlawful

actions.” Elder, 510 U.S. at 515; accord Mitchell v. Forsyth,

472 U.S. 511, 524 (1985) (“[w]Jhere an official could be

expected to know that his conduct would violate statutory or

constitutional rights, he should be made to hesitate” by the

threat of personal liability.) (quotation omitted). And, finally,

such suits vindicate the rule of law by ensuring that “all

21

individuals, whatever their position in government, are subject

to federal law.” Butz, 438 U.S. at 506.

Absolute immunity for public officials comes at an especially

great cost because it sacrifices all the benefits of suits against

public officials in order to protect against their costs. By

contrast, qualified immunity attempts to accommodate the

public’s conflicting interests in compensating injured citizens

and protecting public officials. Qualified immunity shields

government officials performing discretionary functions from

liability whenever “their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known.” Harlow, 457 U.S. at

818. This standard “ensure[s] that federal officials are not

harassed by frivolous lawsuits,” Butz, 438 U.S. at 508, and it

“provides ample protection to all but the plainly incompetent

or those who knowingly violate the law.” Malley, 475 U.S. at

341. At the same time, however, the qualified immunity

standard protects the “public interest in deterrence of unlawful

conduct and in compensation of victims” by permitting claims

that are based upon objectively unreasonable conduct to

proceed. Harlow, 457 U.S. at 819.

Accordingly, the decisions of this Court “make plain that

qualified immunity represents the norm.” Harlow, 457 U.S. at

807. In other words, “[t]he presumption is that qualified rather

than absolute immunity is sufficient to protect government

officials in the exercise of their duties,” Burns, 500 U:S. at

486-87, and an official claiming absolute immunity is required

to make the “most convincing showing that the immunity is

necessary” to protect the function in question. /mbler, 424

US. at 434 (White, J., concurring); see also Butz, 438 U.S. at

507 (noting that absolute immunity is available only in “those

exceptional situations where it is demonstrated that absolute

immunity is essential to the public business”).

The decision below did not show that its newly recognized

theory of absolute immunity was desirable, much less necessary

22

to serve some interest of the public. Nor did respondent

attempt to make such a showing. This is not surprising: the

considerations that motivated this Court to hold prosecutors

absolutely immune from claims based upon the initiation of a

prosecution and the presentation of evidence are inapplicable

here.

In /mbler, this Court found that cloaking a prosecutor’s

performance of advocatory functions with absolute immunity

was justified by three considerations. First, suits based on the

performance of such functions “could be expected with some

frequency” because criminal prosecutions generate deep

resentment and because such claims are easily brought in the

wake of an unsuccessful prosecution. /mbler, 424 U.S. at 425.

Second, lawsuits based upon inherently complex and uncertain

matters such as “the propriety of a closing argument . . . would

pose substantial danger of liability even to the honest

prosecutor.” /d. Third, fear of lawsuits based on the

performance of advocatory functions “could have an adverse

effect upon the functioning of the criminal justice system” by

discouraging prosecutors from presenting relevant evidence to

the jury and by discouraging judges from rendering post-trial

decisions that “might result in the prosecutor’s being called

upon to respond in damages for his error or mistaken

judgment.” Jd. at 426-27.

These considerations are not, however, applicable to claims

that prosecutors have coerced and intimidated witnesses into

providing misleading testimony before the grand jury. First,

such claims do not pose any special danger to prosecutors.

Claims based upon pretrial, investigatory misconduct are not

likely to be brought frequently because “a suspect or defendant

is not likely to be as aware of a prosecutor’s role in [pretrial, —

investigatory conduct] as a prosecutor’s role in initiating and

conducting a prosecution.” Burns, 500 U.S. at 494; accord

Mitchell, 472 U.S. at 522. Second, there is no reason to think

that prosecutors will encounter any special difficulty in

23

defending against claims based upon intimidating and coercing

witnesses because police officers are routinely subjected to

such claims. Finally, and most fundamentally, suits based upon

a prosecutor’s pre-trial, investigatory misconduct do not carry

with them any appreciable danger to the judicial process for the

simple reason that such conduct is not closely associated with

the process. See Burns, 500 US. at 494.

Indeed, the decision below makes no sense as a matter of

policy. First, by affording prosecutors absolute immunity

against malicious prosecution claims based upon investigatory

conduct normally performed by law enforcement officers, the

decision encourages prosecutors to engage in dubious

investigatory conduct. Second, as this Court has recognized,

a rule that immunizes investigatory misconduct because of its

connection with the eventual prosecution of a defendant may

encourage a prosecutor who has engaged in such misconduct

to try and “shield himself from liability for any constitutional

wrongs against innocent citizens by ensuring that they go to

trial.” Buckley, 509 U.S. at 276. In short, even on purely

policy grounds, the decision below is indefensible.

C. The Decision Below Ignores this Court’s Instru-

ctions in Crawford-El.

The decision below also conflicts with this Court’s decision

two years ago in Crawford-El. In that case, this Court

reversed an attempt by the court below to impose a new clear-

and-convincing evidence standard on Bivens claims predicated

on allegations of unconstitutional motive. See Crawford-El,

523 U.S. at 582. This Court held that imposition of this new

burden of proof “stray[ed] far from the traditional limits on

judicial authority.” Jd. at 594. “In the past,” this Court

reminded the D.C. Circuit, “we have consistently declined

similar invitations to revise established rules that are separate

from the qualified immunity defense.” Jd. at 595; see also

Malley, 475 U.S. at 342 (“We reemphasize that our role is to

24

interpret the intent of Congress in enacting § 1983, not to

make a freewheeling policy choice.”).

Ignoring this admonition, the decision below creates a new

set of substantive rules limiting the ability of Bivens plaintiffs

to recover against federal officials. Just as in Crawford-El the

D.C. Circuit imposed an “unprecedented change” in the burden

of proof that “lack[ed] any common law pedigree,” Crawford-

El, 523 U.S. at 595, in the decision below that same court

created a new form of prosecutorial immunity that has no

common-law antecedent. Indeed, while the court of appeals in

Crawford-El attempted to justify the special rule that it

imposed on policy grounds, see 93 F.3d at 821-23 (opinion of

Williams, J.), this time the Court offered no policy justification

whatsoever.

The decision below also ignores this Court’s instruction in

Crawford-El that a plaintiff who “survives the initial hurdle” of

a motion to dismiss based upon immunity “ordinarily will be

entitled to some discovery.” 523 U.S. at 596. Petitioner’s

retaliatory prosecution claim against respondent cleared that

hurdle five years ago when the first panel of the court of

appeals held that respondent’s coercion of William Spartin and

the improper disclosure of grand jury material was not

advocatory and that qualified immunity did not bar petitioner’s

retaliatory prosecution claim. App. 86a-88a. Accordingly,

under this Court’s decision in Crawford-El, petitioner should

have been permitted to conduct discovery on his claim against

respondent. Nevertheless, the decision below affirmed the

_ district court’s denial of discovery in the face of the Rule 56(f)

affidavit submitted by petitioner without any mention of this

Court’s instructions in Crawford-El. App. 8a n.3.

The fact that respondent was permitted to file three

dispositive motions prior to discovery creates the appearance

that the lower court is unwilling to consider even meritorious

claims against prosecutors, an impression that is heightened by

the discovery that petitioner has been able to conduct against

25

the postal inspectors who worked under respondent’s

supervision. That discovery has not only confirmed that

respondent participated extensively in investigative activities,

including the planned coercion of William Spartin and the

improper disclosures of grand jury testimony, it has also

revealed several “smoking guns.” For example, discovery has

shown that respondent received a memorandum from the

postal inspectors listing the fact that the company “funded a

media and political campaign to discredit USPS management

and cause financial harm to USPS” as the first reason for

indicting it. App. 127a-30a. Similarly, another document lists

petitioner’s efforts to “undermine the [USPS] competitive

testing program via the media and Congress” as one of the

details of his supposed offense. App. 131a-33a. As a

consequence, it is now clear that petitioner has a substantial

and meritorious claim of retaliation in response to the exercise

of his First Amendment rights, which the decision below has

prevented him from pursuing based upon an unprecedented and

unjustified expansion of the absolute immunity afforded

prosecutors.

ll. THIS CASE RAISES AN IMPORTANT AND

FUNDAMENTAL ISSUE 'WARRANTING

REVIEW BY THIS COURT.

As the “extensive attention” this Court has devoted to

questions of official immunity attests, Richard H. Fallon, Jr., et

al., Hart & Wechsler’s The Federal Courts and the Federal

System 1124 (4th ed. 1996), this case touches upon an

inherently important subject. Official immunity balances the

public’s conflicting interests in protecting public servants from

unfounded litigation, in vindicating the rights of individual

citizens harmed by official misconduct, and in maintaining the

principle of the rule of law. See supra pp. 20 -23. It should

come as no surprise that over the last twenty years this Court

has reviewed more than two dozen cases relating to official

26

immunity,’ often in the absence of any asserted conflict among

the lower courts over those questions.°

This case is also important because it casts into doubt the

commitment of the court of appeals in which the federal

government sits to the principle of the rule of law. Although

petitioner has alleged a serious abuse of power—and supported

it with substantial evidence of intentional, unconstitutional

misconduct—the panel below refused even to consider his

* See Wilson v. Layne, 526 U.S. 603 (1999); Bogan v. Scott-Harris, 523

U.S. 44 (1998); Crawford-El v. Britton, 523 U.S. 574; Kalina v. Fletcher,

522 U.S. 118; Richardson v. McKnight, 521 U.S. 399 (1997), Clinton v.

Jones, 520 U.S. 681 (1997); United States v. Lanier, 520 U.S. 259 (1997);

Behrens v. Pelletier, 516 U.S. 299 (1996); Johnson v. Jones, 515 U.S. 304

(1995); Elder v. Holloway, 510 U.S. 510; Antoine v. Byers & Anderson,

Inc., 508 U.S. 429; Buckley v. Fitzsimmons, 509 U.S. 259; Hunter v.

Bryant, 502 U.S. 224 (1991); Mireles v. Waco, 502 U.S. 9 (1991); Burns

v. Reed, 500 U.S. 478, Siegert v. Gilley, 500 U.S. 226 (1991); Westfall

v. Erwin, 484 U.S. 292 (1988); Forrester v. White, 484 U.S. 219;

Anderson v. Creighton, 483 U.S. 635; Malley v. Briggs, 475 U.S. 335;

Cleavinger v. Samer, 474 U.S. 193 (1985); Mitchell v. Forsyth, 472 U.S.

511; Pulliam v. Allen, 466 U.S. 522 (1984); Hoover v. Ronwin, 466 U.S.

558 (1984); Tower v. Glover, 467 U.S. 914; Briscoe v. LaHue, 460 U.S.

325; Nixon v. Fitzgerald, 457 U.S. 731 (1982); Harlow v. Fitzgerald, 457

U.S. 800; Gomez v. Toledo, 446 U.S. 635.

5 See Petition for Certiorari, Clinton v. Jones, No. 95-1853, at 9-14 (U.S. |

May 15, 1996); Petition for Certiorari, E/der v. Holloway, No. 92-8579, |

at 5-7 (U.S. Apr. 19, 1993); Petition for Certiorari, Siegert v. Gilley, No.

“90-96, at 22-24 (U.S. July 13, 1990); Petition for Certiorari, Hutchinson

v. Proxmire, No. 78-680, at 12-17, 24-25 (U.S. Oct. 20, 1978); Petition for

Certiorari, Butz v. Economou, No. 76-709, at 7-20 (U.S. Nov. 19, 1976);

Petition for Certiorari, McFarlin v. Sparkman, No. 76-1750, at 7-15 (U.S.

June 8, 1977), cert. granted sub nom. Stump v. Sparkman, 434 U.S. 815

(1977); see also Petition for Certiorari, Hunter v. Bryant, No. 90-1440, at

10-24 (U.S. Mar. 12, 1991) (asserting circuit split on issue unrelated to

official immunity); Petition for Certiorari, Eastland v. United States

Servicemen’s Fund, No. 73-1923, at 11-19 (U.S. Dec. 6, 1974) (asserting

intracircuit conflict).

27

claim on its merits based upon a terse and arbitrary extension

of the doctrine of absolute prosecutorial immunity that

conflicts with multiple decisions of this Court. As a

consequence, the decision below suggests that the lower court

is unwilling to enforce the announced limitations on

prosecutors and require them to abide by the laws they enforce.

Moreover, this impression is heightened by the fact that, nearly

thirty years after Bivens became the law of the land, one

member of the panel below publicly called for overruling the

decision altogether. See Crawford-El, 93 F.3d at 829-32

(Silberman, J., concurring).

Nor is the problem limited to the court below. Although

Bivens held that injured citizens may seek damages in federal

courts from federal officers for violations of their constitutional

rights, this promise remains a largely illusory remedy.

According to recent estimates, plaintiffs prevail in less than one

percent of the recent Bivens cases filed. See Cornelia T.L.

Pillard, Taking Fiction Seriously: The Strange Results of

Public Officials’ Individual Liability under Bivens, 88 Geo.

L.J. 65, 66 (1999) (noting that “plaintiffs obtain a judgment

awarding them damages in a fraction of one percent of Bivens

cases and obtain a monetary settlement in less than one percent

of such cases”); Crawford-El v. Britton, 93 F.3d at 838

(Silberman, J., concurring) (noting that, as of 1985, judgments

had been paid in only 4 out 12,000 Bivens suits). Furthermore,

as one commentator has observed, there appears to be an

“almost complete unavailability of civil redress against a

prosecutor.” Peter J. Henning, Prosecutorial Misconduct and

Constitutional Remedies, 77 Wash. U. L.Q. 713, 818 (1999).

Thus, the decision below exacerbates concerns about the

practical availability of relief under Bivens and the public’s

concomitant need for reassurance the doctrine of official

immunity will be enforced in an even-handed fashion that gives

plaintiffs with meritorious claims against prosecutors their day

in court.

28

Moreover, this case presents an ideal vehicle in which to

provide that reassurance. This is not a prisoner case in which

a minor claim has been made based upon tenuous evidence.

Petitioner has alleged egregious misconduct violating

fundamental rights and supported his allegations with

substantial evidence. Moreover, this case has already been

through two appeals, which have narrowed and focused the

legal issues. Indeed, the question before this Court is really a

simple one: is this Court willing to enforce its decision in

Buckley and other cases imposing limits on official immunity?

This question warrants the attention of this Court. Indeed, in

_ light of the clear conflict between the decision below and the

decisions of this Court, this is the rare case in which it is

appropriate not only to grant certiorari, but also to summarily

reverse the decision below under Rule 16.1 of this Court.

29

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be granted and the decision below summarily reversed.

August 2000

Respectfully submitted,

PAUL M. POHL

(Counsel of Record)

BRYAN D. KOCHER

JONES, DAY, REAVIS & POGUE

One Mellon Bank Center

500 Grant Street, 31st Floor

Pittsburgh, PA 15219

(412) 391-3939

DANIEL H. BROMBERG

JEFFREY S. SUTTON

JONES, DAY, REAVIS & POGUE

51 Louisiana Avenue, N.W.

Washington, DC 20001

(202) 879-3939

Counsel for Petitioner