# Petition for Writ of Certiorari — Moore v. Valder

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 978

## Text

—

/ 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1740%3A1. Public record. Not legal advice.