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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2004 Decided November 9, 2004
No. 03-5241
WILLIAM G. MOORE, JR.,
APPELLEE
v.
MICHAEL HARTMAN, ET AL.,
APPELLANTS
Appeal from the United States District Court
for the District of Columbia
(No. 92cv02288)
Richard Montague, Attorney, U.S. Department of Justice,
argued the cause for appellants. With him on the briefs were
Peter D. Keisler, Assistant Attorney General, Kenneth L.
Wainstein, U.S. Attorney, and Barbara L. Herwig, Assistant
Director.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Paul Michael Pohl argued the cause for appellee. With
him on the brief were Bryan D. Kocher and Daniel H.
Bromberg.
Before: SENTELLE and TATEL, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Qualified immunity generally shields
public officials from civil damages ‘‘insofar as their conduct
does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.’’
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In this case,
appellee William G. Moore, Jr., claims that government offi-
cials—in particular six postal inspectors—pursued criminal
charges against him in retaliation for his political activities.
The postal inspectors argue that even though the criminal
charges against Moore were dismissed, they enjoy qualified
immunity because probable cause supported the prosecution.
At the time of Moore’s indictment, however, the clearly
established law of this circuit barred government officials
from bringing charges they would not have pursued absent
retaliatory motive, regardless of whether they had probable
cause to do so. Because a reasonable jury could find on the
basis of the record before us that Moore’s prosecution violat-
ed this standard, we reject the inspectors’ immunity defense
and affirm the district court’s denial of summary judgment on
this issue.
I.
In the mid-1980s, William G. Moore, Jr., served as CEO of
Recognition Equipment, Inc. (‘‘REI’’), a company specializing
in optical scanning technology. Among other products, REI
produced a multi-line optical character reader (‘‘MLOCR’’)—a
device capable of mechanically interpreting multiple lines of
text. Encouraged by some $50 million in research and devel-
opment funding REI had received from the U.S. Postal
Service (‘‘USPS’’), Moore urged Postmaster General (‘‘PMG’’)
William F. Bolger to consider purchasing REI’s MLOCRs to
3
aid the USPS in automating its mail sorting functions.
Moore was disappointed, however. Since the late 1970s, the
USPS had been pursuing an initiative, known as ‘‘Zip v 4,’’
to add four digits to existing five-digit zip codes; with the
new nine-digit codes, efficient automatic sorting required
scanning only a single line of text, rather than the multiple
lines read by REI’s device. Accordingly, PMG Bolger—a
staunch supporter of Zip v 4—announced in late 1983 that
the USPS would stick with single-line optical character read-
ers (‘‘SLOCRs’’) instead of using REI’s product.
Zip v 4, however, was politically controversial. ‘‘Bureau-
cratic arrogance,’’ one senator called it. Another urged the
USPS to ‘‘Zap the ZIP!!’’ In December 1981, the House
Committee on Government Operations accused the USPS of
‘‘repeatedly overstat[ing] and misrepresent[ing] the benefits
that might accrue’’ due to the nine-digit codes. And despite
PMG Bolger’s testimony that prohibiting Zip v 4 would ‘‘cut
the Postal Service from the only major opportunity it now has
to meet all its obligations at controlled costs,’’ Congress
imposed a two-year moratorium on Zip v 4 in July 1981 and
barred the USPS from making the nine-digit codes mandato-
ry.
Chagrined by PMG Bolger’s procurement of SLOCRs,
Moore plunged REI into the political fray. To members of
Congress and USPS governors, he argued that REI’s
MLOCRs were superior technology because they were not
dependent on Zip v 4. He also pointed out that unlike
SLOCRs, REI’s MLOCRs were American-made. USPS
managers reacted angrily: PMG Bolger told Moore to ‘‘back
off,’’ and another top official told Moore REI would never
receive USPS business. Moore’s position nevertheless gained
influence. Several members of Congress pressed REI’s case
with the USPS Board of Governors, and Representative
Martin Frost, working closely with Moore, introduced legisla-
tion (later withdrawn) to force USPS to buy American-made
MLOCRs. More important, the General Accounting Office
(now the Government Accountability Office) and the Office of
Technology Assessment (‘‘OTA’’) produced reports concluding
that the USPS’s operational losses due to the use of SLOCRs
4
rather than MLOCRs exceeded one million dollars a day.
The OTA report attributed the procurement of SLOCRs to
unrealistic expectations for Zip v 4, noting that while
MLOCR technology might have been inferior in the past, it
was now ‘‘fully competitive,’’ making it unreasonable for
USPS to continue using single-line technology despite low
usage of the nine-digit codes.
Responding to these pressures, the USPS Board of Gover-
nors voted in July 1985 to make a ‘‘mid-course correction’’
and switch to multi-line technology. Although this was just
what Moore’s media and lobbying campaign had sought, the
result turned out unhappily for Moore and his company.
In the months following the mid-course correction, the
USPS Postal Inspection Service uncovered two criminal
schemes relating, at least incidentally, to REI. The first, a
kickback arrangement, involved a USPS Governor, Peter
Voss, and a consulting firm, Gnau & Associates, Inc. (‘‘GAI’’),
that REI had hired in connection with its lobbying campaign.
As it turned out, GAI was paying Voss for referrals, and
three GAI officers—John Gnau, Jr., Michael Marcus, and
William Spartin—had agreed to share the proceeds of the
REI contract with Voss. The second scheme, the details of
which are unimportant to this case, involved Spartin’s and
REI’s role in the search for a new PMG. In connection with
these two schemes, Voss, Gnau, and Marcus pleaded guilty to
criminal charges, while Spartin accepted immunity in ex-
change for cooperation.
Having uncovered these crimes, the postal inspectors
sought to determine whether anyone at REI had participated
in them. Following an investigation we describe in more
detail below, a grand jury returned a seven-count indictment
against Moore, REI, and REI’s Vice President for Marketing,
Robert Reedy, in October 1988. The case went to trial a year
later, but six weeks into the proceedings at the close of the
government’s case, the district court issued a judgment of
acquittal. See United States v. Recognition Equip. Inc., 725
F. Supp. 587, 587-88, 602 (D.D.C. 1989). Emphasizing a
‘‘complete lack of direct evidence to suggest the Defendants
5
knew of the illegal payoff scheme,’’ id. at 596, the district
court concluded, ‘‘The government’s evidence is insufficient,
even when viewed in the light most favorable to it, for a trier
of fact to find guilt beyond a reasonable doubt. Much of what
the government characterizes as incriminating evidence is not
persuasive of guilt when viewed in its full context. In fact,
some of the government’s evidence is exculpatory and points
toward innocent conduct of the Defendants.’’ Id. at 587-88.
Exonerated of the criminal charges, Moore set about ob-
taining civil damages for the harm to his life and career.
Joined by his wife, Moore began by filing a complaint in
the Northern District of Texas asserting constitutional
claims under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), against
the prosecutor and six postal inspectors (one of whom is
now deceased). Shortly thereafter, the Moores filed a sec-
ond complaint, also in the Northern District of Texas, seek-
ing recovery from the United States under the Federal
Tort Claims Act (‘‘FTCA’’), 28 U.S.C. §§ 2671-2680. The
Texas federal court dismissed Mrs. Moore’s claims for lack
of standing; found that absolute immunity barred the
claims against the prosecutor; and, citing qualified immuni-
ty, threw out a Fifth Amendment abuse-of-process claim
against the inspectors. Moore v. Valder, No. 91-2491 (N.D.
Tex. Sept. 21, 1992). The court transferred the remaining
claims to the U.S. District Court for the District of Colum-
bia, which dismissed the entire suit. Moore v. Hartman,
No. 92-2288, 1993 WL 405785 (D.D.C. Sept. 24, 1993).
Reviewing the decisions of the D.C. and Texas district
courts, we reinstated certain claims against the prosecutor
and the United States along with a retaliatory prosecution
Bivens claim against the postal inspectors. Moore v. Valder,
65 F.3d 189 (D.C. Cir. 1995) (‘‘Moore I’’). On remand, the
district court denied the inspectors’ motion for summary
judgment, allowing limited discovery on the retaliatory prose-
cution claim. As to the prosecutor and the United States,
however, the court again dismissed Moore’s claims. Moore v.
Valder, No. 92-2288 (D.D.C. Feb. 5, 1988). Moore appealed a
second time, and we affirmed the district court’s ruling except
6
as to one FTCA claim not relevant here. Moore v. United
States, 213 F.3d 705 (D.C. Cir. 2000) (‘‘Moore II’’).
The inspectors, setting up the issue we now face, again
sought summary judgment on the retaliatory prosecution
claim, this time on the theory that they enjoy qualified
immunity because probable cause supported Moore’s prosecu-
tion. In the alternative, the inspectors argued that the
record contained insufficient evidence of retaliatory motive.
The district court denied the inspectors’ motion in the follow-
ing one-paragraph order:
Upon consideration of the motion of defendants,
United States and Michael Hartman, et al., for sum-
mary judgment and the response thereto, the Mo-
tion for Summary Judgment is DENIED. There
are material facts in dispute. The most significant
are the facts surrounding the presentation of evi-
dence to the grand jury and the disclosure of grand
jury testimony as to a key prosecution witness.
The inspectors now appeal, arguing, as they did in the district
court, that they enjoy qualified immunity because they had
probable cause to pursue the criminal charges against Moore.
II.
Before addressing the merits of the inspectors’ qualified
immunity claim, we must consider whether we have jurisdic-
tion over this interlocutory appeal. Though 28 U.S.C. § 1291
permits us to hear appeals only from ‘‘final decisions’’ of the
district court, denial of a claim of qualified immunity falls
within the ‘‘small class’’ of collateral orders subject to immedi-
ate appeal under that statute despite the absence of a final
judgment. See Mitchell v. Forsyth, 472 U.S. 511, 524-25, 530
(1985). The reason for this is simple: appeal after trial
cannot remedy an erroneous denial of qualified immunity,
since by then the defendant will already have suffered the
burdens of litigation the immunity is intended to prevent.
See id. at 525-30; Int’l Action Ctr. v. United States, 365 F.3d
20, 23 (D.C. Cir. 2004). As Moore observes, however, the
collateral order doctrine applies only ‘‘to the extent [the
7
denial of qualified immunity] turns on an issue of law.’’
Mitchell, 472 U.S. at 530. Pointing out that many facts in the
record are disputed, Moore argues that the inspectors cannot
establish a ‘‘purely legal’’ issue subject to interlocutory ap-
peal, id. at 530, unless they concede the plaintiff’s view of the
facts—something Moore says the inspectors refuse to do.
Accordingly, Moore argues, we lack jurisdiction to entertain
the inspectors’ appeal.
We have little trouble rejecting Moore’s argument. Al-
though in one interlocutory case where we found jurisdiction,
we did describe the facts as ‘‘effectively conceded,’’ see Farm-
er v. Moritsugu, 163 F.3d 610, 614 (D.C. Cir. 1998), we never
suggested that such a concession was required for jurisdic-
tional purposes. In fact, such a requirement would conflict
with Behrens v. Pelletier, 516 U.S. 299 (1996), which held that
denial of a claim of qualified immunity remains an appealable
collateral order even if the underlying facts are disputed—
indeed, even if, as in this case, the district court denied the
motion for summary judgment due to the presence of materi-
al issues of fact. See id. at 312-13. While noting in reliance
on Johnson v. Jones, 515 U.S. 304 (1995), that ‘‘determina-
tions of evidentiary sufficiency at summary judgment are not
immediately appealable merely because they happen to arise
in a qualified-immunity case,’’ Behrens explained that the
solution to a disputed record on qualified immunity is the
same as in any other summary judgment case: the court
determines ‘‘what facts the district court, in the light most
favorable to the nonmoving party, likely assumed,’’ perform-
ing ‘‘a cumbersome review of the record’’ if necessary. Beh-
rens, 516 U.S. at 313 (quoting Johnson, 515 U.S. at 319).
Once the facts are established under that standard, an immu-
nity claim like the inspectors’ raises ‘‘the purely legal ques-
tion of whether or not an official’s actions violate clearly
established law,’’ no less than in an appeal based on agreed
facts. See Meredith v. Fed. Mine Safety & Health Review
Comm’n, 177 F.3d 1042, 1048–49 (D.C. Cir. 1999). Such legal
questions—which sharply divide the parties in this case—fall
squarely within the collateral order doctrine as expounded in
Mitchell v. Forsyth.
8
Though neither party raises the issue, we also note that our
statement in Moore I that ‘‘Moore’s retaliatory prosecution
claim TTT does allege the violation of clearly established law,’’
65 F.3d at 196, neither deprives us of jurisdiction nor controls
our resolution of the issues before us. The denial of qualified
immunity at summary judgment is a ‘‘final decision’’ subject
to immediate appeal even if the defendant previously appeal-
ed a denial of the same claim on a motion to dismiss. See
Behrens, 516 U.S. at 309-11. Thus, although the inspectors
conceded in the appeal from their motion to dismiss that
Moore’s claim stated a violation of clearly established law,
they are free to assert qualified immunity now: the ‘‘legally
relevant factors bearing upon the [qualified immunity] ques-
tion will be different on summary judgment than on an earlier
motion to dismiss,’’ because the court now conducts the
immunity inquiry based on ‘‘the evidence before it,’’ rather
than the pleadings. Id. at 309. Furthermore, as we ex-
plained in Moore II, our opinion in Moore I ‘‘said nothing
about the elements of [a retaliatory prosecution claim], or
whether Moore could succeed on his complaint.’’ Moore II,
213 F.3d at 709. Accordingly, whether Moore’s cause of
action requires lack of probable cause remains a live issue.
III.
As the Supreme Court has recognized, although damages
suits like Moore’s ‘‘may offer the only realistic avenue for
vindication of constitutional guarantees,’’ such suits also carry
substantial social costs, including the expense of litigation, the
diversion of official energy, and the risk of deterring legiti-
mate official action. See Harlow, 457 U.S. at 814. Striking
‘‘a balance between the evils inevitable in any available alter-
native,’’ id. at 813, qualified immunity protects ‘‘government
officials performing discretionary functions TTT from liability
for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known,’’ id. at 818. Underly-
ing this doctrine is the basic principle of fair notice: officials
may be held liable if ‘‘[t]he contours of the right [are]
sufficiently clear that a reasonable official would understand
9
that what he is doing violates that right,’’ Anderson v. Creigh-
ton, 483 U.S. 635, 640 (1987); otherwise, the unfairness of
holding officials responsible on grounds they could not have
anticipated trumps the individual’s interest in vindicating
transgressed rights. See id. at 641; Crawford-El v. Britton,
523 U.S. 574, 590-91 (1998). To ensure that shielding public
officials from unclear law does not freeze the law in place,
however, courts facing qualified immunity claims ordinarily
engage in a two-step inquiry, considering first what the law
is, and only then whether that law was clearly established.
See Wilson v. Layne, 526 U.S. 603, 609 (1999). Were the
procedure otherwise, constitutional avoidance might lead
courts to rest on findings of uncertainty without first clarify-
ing the law for future cases—a result contrary to the interest
of both government officials and individuals claiming that
such officials violated their constitutional rights. See id.;
County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998).
Because the qualified immunity inquiry focuses on whether
the officials could have known ‘‘what [they were] doing’’ was
unlawful, Anderson, 483 U.S. at 640, defining the right ‘‘at the
appropriate level of specificity’’ is critical. Wilson, 526 U.S.
at 615; see also Butera v. District of Columbia, 235 F.3d 637,
646 (D.C. Cir. 2001). While the right need not have arisen in
identical or even ‘‘fundamentally’’ or ‘‘materially similar’’ cir-
cumstances, see Hope v. Pelzer, 536 U.S. 730, 739, 741 (2002),
the right can be considered clearly established only if the
unlawfulness was ‘‘apparent’’ in light of pre-existing law, see
Anderson, 483 U.S. at 640. The ‘‘salient question,’’ then, is
‘‘whether the state of the law [at the relevant time] gave [the
officials] fair warning that their alleged treatment of [the
plaintiff] was unconstitutional.’’ Hope, 536 U.S. at 741.
In this case, Moore seeks to vindicate his right to be free
from prosecution undertaken in retaliation for First Amend-
ment activity. The inspectors, though conceding that right
generally exists, see Crawford-El, 523 U.S. at 592 (describing
the ‘‘general rule’’ that ‘‘the First Amendment bars retaliation
for protected speech’’ as one that ‘‘has long been clearly
established’’), urge us to define the claim more specifically.
10
Insisting the record shows that they acted with probable
cause, the inspectors argue that what they were doing could
violate a clearly established right only if the First Amend-
ment prohibits retaliatory prosecution even when probable
cause exists. Based on cases from other jurisdictions requir-
ing lack of probable cause as an element of a retaliatory
prosecution claim, the inspectors argue that no such right
exists, much less a clearly established one. Moore disputes
both points in the inspectors’ syllogism: this circuit, he
insists, clearly permitted liability despite probable cause at
the time of his indictment, and in any event the inspectors
acted without sufficient grounds for suspicion.
As instructed by Wilson, we consider this debate in two
stages, asking first what the law is, and second whether that
law was clearly established at the time of Moore’s indictment.
Because, as we shall explain, we agree with Moore that the
inspectors may be liable even if they had probable cause, we
have no need to determine whether, as the inspectors insist,
they actually had probable cause to pursue Moore’s indict-
ment.
Were Moore’s Rights Violated?
The question presented under the first element of the
qualified immunity test—does the retaliatory prosecution
cause of action require a lack of probable cause?—has already
been answered by this circuit. In Haynesworth v. Miller, 820
F.2d 1245 (D.C. Cir. 1987), we described the ‘‘essential ele-
ments of a retaliatory-prosecution claim’’ as follows:
The Court should consider whether the plaintiffs
have shown, first, that the conduct allegedly retaliat-
ed against or sought to be deterred was constitution-
ally protected, and, second, that the State’s bringing
of the criminal prosecution was motivated at least in
part by a purpose to retaliate for or to deter that
conduct. If the Court concludes that the plaintiffs
have successfully discharged their burden of proof
on both of these issues, it should then consider a
third: whether the State has shown by a preponder-
11
ance of the evidence that it would have reached the
same decision as to whether to prosecute even had
the impermissible purpose not been considered.
Id. at 1257 n.93 (quoting Wilson v. Thompson, 593 F.2d 1375,
1387 (5th Cir. 1979) (footnote omitted)). Nowhere does this
statement suggest that lack of probable cause is an element
of the claim, nor does its silence imply such a requirement.
The standard Haynesworth articulated is this: once a plain-
tiff shows protected conduct to have been a motivating factor
in the decision to press charges, the burden shifts to the
officials to show that they would have pursued the case
anyway. Given that probable cause usually represents only
one factor among many in the decision to prosecute—some
others being the strength of the evidence, the resources
required for the prosecution, the relation to enforcement
priorities, and the defendant’s culpability—there is no reason
to expect that the mere existence of probable cause will
suffice under Haynesworth to protect government officials
from liability.
The inspectors insist that this circuit has never ‘‘squarely
addressed’’ the issue they raise, leaving us free to require
lack of probable cause. (Appellant’s Br. at 25.) Again read-
ing Haynesworth, we disagree. The relevant passage reads
as follows:
We share the conviction TTT that retaliatory prose-
cution unconstitutionally impinges on the right of
access to the courts guaranteed by the First Amend-
ment. Haynesworth alleged that he was charged
with disorderly conduct solely because he refused to
release his civil claims against the arresting officers.
That averment, we think, partakes from the circum-
stances enough substance to entitle him to proceed
directly under the First Amendment for damages.
Haynesworth, 820 F.2d at 1257 (footnotes omitted). Because
this conclusion—that plaintiff had stated a claim for retaliato-
ry prosecution—required some vision of what the claim en-
tailed, Haynesworth’s articulation of the elements was central
to its holding. True enough, plaintiff described his prosecu-
12
tion as ‘‘unmerited,’’ id. at 1255, and the opinion said the
charges arose ‘‘solely because’’ of protected activity, id. at
1257 (emphasis added), implying, perhaps, that plaintiff was
prosecuted without probable cause. As we noted above,
however, Haynesworth’s description of the cause of action left
little doubt that probable cause would not automatically im-
munize a retaliatory prosecution. Because that description of
the tort was part of Haynesworth’s holding, we lack authority
to disregard it.
Haynesworth, moreover, is not the only case in which we
have suggested liability may arise regardless of probable
cause. In Martin v. D.C. Metropolitan Police Department,
812 F.2d 1425 (D.C. Cir. 1987), overruled on other grounds by
Crawford–El v. Britton, 93 F.3d 813 (D.C. Cir. 1996) (en
banc), rev’d, 523 U.S. 574 (1998), in which plaintiff alleged
that police pressed charges to deter the vindication of civil
rights, we noted ‘‘the at least arguable existence of probable
cause,’’ yet went on to consider the sufficiency of the motive
allegations. Id. at 1434. That disposition implied that a
showing of probable cause, by itself, is insufficient to preclude
liability. Id. at 1434. As the inspectors argue, Martin could
be read to have simply assumed the validity of the claim so as
to reach the motive issue, but the case at least reinforces the
view that probable cause is not conclusive. Demonstrating
the continuing vitality of Haynesworth, moreover, our two
prior opinions in this case relied on that decision in discussing
retaliatory prosecution. See Moore I, 65 F.3d at 196 & n.12;
Moore II, 213 F.3d at 709.
As the inspectors point out, several other circuits require
lack of probable cause in retaliatory prosecution actions. See,
e.g., Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992);
Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782, 796-97 (3d
Cir. 2000); Keenan v. Tejeda, 290 F.3d 252, 260 (5th Cir.
2002); Smithson v. Aldrich, 235 F.3d 1058, 1063 (8th Cir.
2000); Redd v. City of Enterprise, 140 F.3d 1378, 1383-84
(11th Cir. 1998). These cases, however, are not the law of
this circuit—Haynesworth is. Besides, two other circuits
agree with Haynesworth. See Greene v. Barber, 310 F.3d
889, 897-98 (6th Cir. 2002); Poole v. County of Otero, 271
13
F.3d 955, 961 (10th Cir. 2001). Our approach, moreover,
comports with the Supreme Court’s framework in Mt.
Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977). In that case, which involved an unten-
ured public school teacher’s claim that the school board fired
him because of his First Amendment activity, the Court
explained that if the teacher could show his constitutionally
protected conduct to have been a ‘‘motivating factor’’ in the
firing, the burden would shift to the board to establish that ‘‘it
would have reached the same decision TTT even in the ab-
sence of the protected conduct.’’ Id. at 287. While the
criminal context, of course, involves considerations of prosecu-
torial discretion absent in a school employment decision, Mt.
Healthy provides considerable support for Haynesworth.
Although Haynesworth’s binding effect is enough to end
the first part of our qualified immunity inquiry, the inspectors
have raised serious objections to our approach, so we think it
useful to flesh out the reasons why the existence of probable
cause should not necessarily preclude liability. To begin
with, probable cause, requiring no more than ‘‘information
sufficient to warrant a prudent man in believing the suspect
has committed or is committing an offense,’’ United States v.
Kayode, 254 F.3d 204, 209 (D.C. Cir. 2001) (internal quota-
tions and alterations omitted), is designed for the ordinary
arrest or prosecution where courts may presume that govern-
ment officials exercised their discretion in good faith, so long
as their actions were not obviously unfounded. Yet when
plaintiffs demonstrate hostility to free speech to have been a
motivating factor in the decision to prosecute—as in a prima
facie case under Haynesworth—courts may no longer pre-
sume that appropriate considerations guided the govern-
ment’s decision-making. In such circumstances, were courts
to demand no more than a showing of probable cause, as the
inspectors urge, law enforcement officers could freely bring
marginal cases against advocates of disfavored views, even if
the officers’ only reason for doing so were hostility to those
views. The inspectors’ approach, in other words, interprets
the First Amendment to prevent only baseless prosecutions,
i.e., prosecutions lacking probable cause. As the inspectors
14
see it, constitutional free speech protections say nothing
about prosecutions brought only because the defendant is,
say, a peace activist, a Klan member, a Democrat, or a
Republican.
In our view, the First Amendment prohibits such targeted
prosecutions, just as it prohibits legislation aimed at punish-
ing free speech. To be sure, prosecutorial discretion is a
‘‘core executive constitutional function,’’ United States v.
Armstrong, 517 U.S. 456, 465 (1996), but as the Supreme
Court has made clear, ‘‘the decision to prosecute may not be
deliberately based upon an unjustifiable standard such as
race, religion, or other arbitrary classification, including the
exercise of protected statutory and constitutional rights.’’
Wayte v. United States, 470 U.S. 598, 608 (1985) (internal
quotations and citations omitted). Respectful of executive
discretion, Haynesworth’s framework allows the government
to proceed with prosecutions that, though motivated in part
by hostility to First Amendment activity, can be justified on
legitimate grounds. When hostility to speech represents a
but-for cause of the prosecution, however, the charges are
‘‘deliberately based upon an unjustifiable standard.’’ Id.
We also disagree with the inspectors that analogous First
Amendment Bivens claims call for imposing an ‘‘objective’’
threshold requirement relating to the defendant’s culpability.
Pointing out that ‘‘courts in other contexts have interposed
rules requiring some objective showing before scrutinizing a
criminal prosecution for bad faith or other ill motive,’’ the
inspectors argue that lack of probable cause should be re-
quired in the retaliatory prosecution context because it af-
fords ‘‘a ready-made (but not insurmountable) objective crite-
rion as a first step in assessing prosecutorial discretion.’’
(Appellant’s Br. at 29-30.) Yet the two defenses the inspec-
tors cite in support of their theory—selective prosecution and
vindictive prosecution—are hardly irreconcilable with
Haynesworth. It is true that a selective prosecution claim
requires proof not only that prosecutors acted with bad
intent, but also that ‘‘similarly situated individuals [outside
the protected category] were not prosecuted.’’ Armstrong,
517 U.S. at 465. But once that showing has been made, the
accused has a defense to the charges. See United States v.
15
Mangieri, 694 F.2d 1270, 1273 (D.C. Cir. 1982); United
States v. Steele, 461 F.2d 1148, 1151-52 (9th Cir. 1972). Thus,
contrary to the inspectors’ theory, selective prosecution doc-
trine supports our view that constraints on prosecutorial
motive may at times override the interest in punishing objec-
tively culpable conduct.
As for vindictive prosecution, that defense entails a frame-
work much like the one Haynesworth adopted for retaliatory
prosecution: if evidence indicates a ‘‘reasonable likelihood’’
that the government acted ‘‘to punish a defendant for exercis-
ing his legal rights,’’ a presumption of vindictiveness arises,
which the government may rebut with ‘‘objective information
in the record justifying the increased sentence or charges.’’
United States v. Gary, 291 F.3d 30, 34 (D.C. Cir. 2002)
(quoting Maddox v. Elzie, 238 F.3d 437, 446 (D.C. Cir. 2001)).
Though the government’s burden under this standard may be
lighter than under Haynesworth, in both cases prima facie
evidence of bad motive triggers an obligation on the govern-
ment’s part to show that permissible considerations supported
its action. The standard the inspectors propose, in contrast,
requires plaintiffs—the alleged victims—to establish lack of
justification in the first instance.
Our reluctance to impose objective limitations finds support
in the logic of Crawford-El. In that case, the Supreme Court
held that while qualified immunity protects officers who com-
ply with an objectively reasonable view of the law, it affords
no protection against claims under clearly established law
that entail the subjective element of improper intent. See
Crawford-El, 523 U.S. at 593-94. Consistent with this rea-
soning, we see no reason why compliance with the objective
probable cause standard should bar scrutiny of subjective
motivations here. Other constraints identified in Crawford-
El—procedural mechanisms for limiting discovery and facili-
tating summary judgment, as well as the opportunity to show
the prosecution would have happened anyway, id. at 592-93,
597-601—may screen out baseless motive claims without pre-
cluding recovery in cases where officers pursue retaliatory
charges they would not have undertaken but for their uncon-
stitutional animus.
16
In sum, the law of this circuit, as expressed in Haynes-
worth, affords damages liability for prosecutions that would
not have occurred without retaliatory motive, even if the
officers involved acted on the basis of probable cause. This
theory of liability, we hasten to stress, is limited. Given that
probable cause ordinarily suffices to initiate a prosecution,
that showing will be enough in most cases to establish that
prosecution would have occurred absent bad intent. A Bi-
vens recovery remains possible, however, in those rare cases
where strong motive evidence combines with weak probable
cause to support a finding that the prosecution would not
have occurred but for the officials’ retaliatory animus. In
such circumstances, government officers cannot prevail under
Haynesworth because they cannot establish that legitimate
considerations supported their action.
Moore’s case appears to be an example of this rare circum-
stance, at least when we view the evidence in the light most
favorable to Moore, as we must at summary judgment, see,
e.g., Beckett v. Airline Pilots Ass’n, 59 F.3d 1276, 1278 (D.C.
Cir. 1995). Looking at the record through that lens, we
detect not only strong evidence of retaliatory motive, but also
quite weak indicators of probable cause.
Beginning with motive, we think the record permits, at the
least, a reasonable inference that the inspectors had Moore’s
lobbying campaign in mind as they pursued his indictment.
The inspectors referred explicitly to Moore’s political activi-
ties in two reports summarizing the evidence in the REI
investigation. The first, titled ‘‘Arguments for Indicting the
Corporation,’’ lists the following as the first of nine ‘‘bas[es]’’
for indicting REI:
Independent of Voss/GAI actions, the corporation
and its PAC funded a media and political campaign
to discredit USPS management and cause financial
harm to USPS, for example:
a. staged questions and testimony before Con-
gress
b. Frost amendment to freeze USPS appropria-
tions bill.
17
Similarly, a ‘‘Details of Offense’’ memorandum submitted to
the U.S. Attorney’s Office refers to REI’s lobbying activities
as evidence that Moore and Reedy (the REI vice president)
had ‘‘intent to defraud the USPS’’:
Moore’s, Reedy’s and REI’s intent to defraud the
USPS is evident in the following events and transac-
tions that related to Voss’ official influence but were
independently initiated by Moore and Reedy.
1 On or about July 25, 1985, at Moore’s and
Reedy’s suggestion and with their substantial
input relative to its drafting, Congressman
Frost proposed an amendment to a USPS
appropriate [sic] bill that in effect would
freeze USPS revenue until MLOCRs were
purchased from REI.
TTTT
1 During the period August 1985 to April 1986,
REI continued to undermine the competitive
testing program [an aspect of OCR procure-
ment] via the media and Congress.
Read in Moore’s favor, these documents suggest that the
inspectors regarded Moore’s speech and lobbying—activities
clearly subject to First Amendment protection—as grounds
for prosecution, even though these activities were ‘‘indepen-
dent of Voss/GAI actions’’ (presumably a reference to the
alleged conspiracy). Consistent with this view of the inspec-
tors’ motives, subpoenas in the REI investigation targeted
speech and lobbying activity, seeking, among other things,
‘‘articles placed with trade publications and reporters,’’ ‘‘inter-
views with journalists and reporters,’’ ‘‘meetings with United
States Congressmen,’’ and ‘‘consulting services or meetings
with or regarding the REI Political Action Committee.’’
Reinforcing the inference that the prosecution would not
have happened without retaliatory motive, the evidence sup-
porting the government’s case—again, viewed in the light
most favorable to Moore—appears quite weak. To begin
with, the strongest evidence connecting REI to the conspira-
18
cy related to Moore only indirectly. Though Voss, the cor-
rupt USPS governor, called Moore at one point to ask ‘‘why
hadn’t it [a contract with GAI] been done,’’ Voss gave his
initial referral not to Moore, but to Reedy. Reedy may have
known the GAI contract was fishy; at the least, information
from Gnau about conversations he had with Reedy gave the
inspectors reason to suspect as much. See REI, 725 F. Supp.
at 593–94. In addition, Reedy, perhaps revealing a guilty
conscience, initially lied to the inspectors about the source of
the GAI referral. Id. at 595–96. Yet no record evidence
indicates that Reedy shared with Moore whatever misgivings
he may have had about the contract.
Attempting to connect Moore to the conspiracy, the inspec-
tors point to several scribbles about Voss and GAI in a
notebook Moore labeled ‘‘Postal.’’ One entry, apparently
dating from December 18, 1984, reads as follows:
Get John Knau [sic] involved — have broad
scale assoc w/ John — get together
——————
* Call Peter Voss
——————
‘‘The business to be had here is
substantial’’
Another entry dated April 29, 1985 again mentions Gnau and
Voss, while also referring to Zip v 4; to John McKean, the
Chairman of the USPS Board of Governors; to Electrocom
Automation, Inc., a competing producer of scanning technolo-
gy; and to James Jellison, a top USPS official:
USPS — prudent to do contingency planning
1 ZIP v 4 not going well
1 Consultant — wired (Peter Voss)
1 Inside vs outside control
1 100 systems — $150m-$250m
1 McKean — West Point/airborne/Gonzaga HS
19
1 Upgrade at Electrocom
1 Jellison
Elsewhere, the notes appear to refer to information from a
‘‘closed session’’ of the USPS Board of Governors, and an
entry dating from January 27, 1987—more than six months
after Voss’s guilty plea—suggests that Moore gave advice to
employees in preparation for Postal Inspection Service inter-
views:
Critical Incident 1 Final ‘‘fishing trip’’
1 Lawyer in DC — late for hearing —
Martin Luther King — no copy of transcript
(plea arrangement) — date of plea
— conversation between judge v
U.S. Attorney
————————————————————————
1 lot of homework
1 drive a wedge between people (intimidate)
1 answer ‘‘I don’t know, I really can’t remember’’
1 excitable
1 all kinds of scenarios
1 ask same questions over and over
1 don’t show him how smart you are
1 don’t relax
1 long interrogation (tough questions at end)
1 possible subpoena
Note [illegible] B/S list based (1/27) on
high number of charges
The inspectors interpret these notes to show that Moore (1)
formed a ‘‘broad scale’’ criminal association with Gnau and
Voss, (2) sought ‘‘inside control’’ of the Board of Governors
through a ‘‘wired’’ consultant (i.e., Gnau), and (3) obstructed
the Postal Inspection Service investigation.
20
Reading the notes in Moore’s favor, however, we think it at
least as plausible that the notes reflect perfectly innocent
business considerations, such as Moore’s interest in forming a
legitimate relationship with a well-connected lobbyist and
protecting his employees from potentially damaging litigation.
To be sure, as the inspectors point out, Moore’s interview
advice includes no instruction to tell the truth, while the
instruction to answer ‘‘I don’t know, I really can’t remember’’
could suggest a coverup. But Moore points to evidence
suggesting he did encourage his employees to tell the truth,
and in light of that evidence, Moore’s ‘‘I don’t know’’ state-
ment could mean nothing more than that he cautioned em-
ployees to avoid guesswork and speculation—guidance that,
like Moore’s other notes, reflects standard deposition advice.
Next, the inspectors think it suspicious that Moore’s note-
book was missing thirty-six of its eighty pages, and that REI
failed to locate certain subpoenaed phone records from late
1984 and early 1985—the ‘‘critical period,’’ as the inspectors
see it, for the formation of the conspiracy. Because Marcus
told the inspectors he had heard from Spartin that ‘‘Reedy,
Moore, Gnau and Voss TTT met and developed a story to
cover up their involvement,’’ the inspectors suspected that
REI officials removed the pages and records to cover their
tracks. Yet phone records were also missing from early
1984—long before the Voss referral—while REI produced
other evidence (including at least one phone message) reveal-
ing contacts between Moore and Voss. As for the notebook,
Moore explained during his deposition that he often tore out
sheets for his secretary to type. Given the posture of this
case, we must resolve these ambiguities in Moore’s favor,
leading us to conclude that the missing notes and records fail
to establish a coverup.
Other evidence points to Moore’s innocence. Though lack-
ing any evident reason to protect Moore, not one of the
21
conspiracy’s admitted members fingered him. Spartin, for
example, failed to corroborate Marcus’s assertion that Moore
and Reedy agreed to a coverup. In fact, despite extraordi-
nary pressure—at one point as many as ten inspectors sur-
rounded Spartin while an Assistant United States Attorney
tore up his immunity agreement—Spartin never indicated
that Moore knew of the conspiracy. Instead, Spartin stated
that although he ‘‘[didn’t] give a hoot and hell about Bill
Moore,’’ he would not ‘‘make up a story’’ to incriminate
Moore. Asked whether ‘‘anyone in REI knew Peter Voss
was involved in this scheme TTT or was being paid,’’ Spartin
offered only that other witness statements the inspectors had
shown him suggested Moore’s guilt: ‘‘Let me answer you this
way,’’ Spartin said. ‘‘Being paid, no sir, I don’t. I have no
knowledge of that at all. Peter Voss being part of the deal,
no knowledge. But, you know I read that goddamn testimo-
ny and I’m not a lawyer but Jesus, there’s enough there to
seem to me to hang REI from the yardarm.’’ Voss even told
the inspectors there was ‘‘no way Moore knew’’ of anything
improper.
Recognizing the deficiencies in the inspectors’ evidence, the
U.S. Attorney’s Office hesitated to indict—even though the
inspectors urged them to do so. ‘‘The facts underlying this
[proposed] indictment are complicated, and the evidence is
entirely circumstantial,’’ the Chief and Deputy Chief of Spe-
cial Prosecutions wrote in a memo to the U.S. Attorney. ‘‘If
this matter goes to trial it will be a very difficult case and
consume significant resources.’’ While concluding—incorrect-
ly, as it turned out—that ‘‘there is enough evidence to get by
an MJOA [motion for judgment of acquittal],’’ the memo
described the chances of convicting Moore, Reedy, and REI
as ‘‘questionable.’’ As to Moore specifically, the two Assis-
tant United States Attorneys observed:
[N]one of the evidence shows direct knowledge by
Moore of the payments to Voss through GAI. Even
22
when the evidence is considered in light of Moore’s
close association with Reedy—from which one can
infer that Moore knew of at least some of Reedy’s
conversations with Gnau—it proves no more than
that Moore probably knew of the payments to Voss.
True enough, Joseph Valder, the AUSA handling the investi-
gation, disagreed with the memo, stating in a response that
‘‘hundreds, if not thousands, of pieces of direct evidence TTT
show that the defendants are guilty beyond a reasonable
doubt.’’ Nevertheless, the opinion of the Chief and Deputy
Chief of Special Prosecutions—two experienced prosecutors—
that the evidence was ‘‘questionable’’ adds weight to Moore’s
assertion that unbiased officials would never have pressed
charges against him.
The record also suggests that unusual prodding from the
Postal Inspection Service contributed to the eventual decision
to indict—an inference that could, again, support Moore’s
theory of retaliatory motive. The Chief Postal Inspector,
C.R. Clauson, twice wrote to the U.S. Attorney, Jay Stephens,
urging him to press charges against Moore, Reedy, and REI.
In the second letter, which followed the AUSAs’ memoran-
dum, Clauson wrote, ‘‘Frankly, Jay, I am disappointed by
your office’s failure to act on this matter and the series of
broken promises from your staff (review committee) relative
to the date and nature of their recommendation.’’ Both
Clauson and another inspector (one of the defendants in this
case) said in their depositions that they were unable to recall
the Postal Inspection Service ever sending a similar letter.
Moreover, some record evidence could lead a reasonable
trier of fact to conclude that when the U.S. Attorney’s Office
finally decided to indict, the inspectors behaved before the
grand jury as if their case needed bolstering. For example,
when Robert Bray, an REI Vice President, wanted to explain
in his grand jury statement that to his knowledge Moore and
Reedy knew nothing about the payoffs, Valder and the in-
spectors refused to let him say any such thing, despite
23
protracted negotiations with Bray’s lawyer. Valder apparent-
ly circled portions of Bray’s draft statement and wrote ‘‘don’t
reveal.’’ The record also suggests that the inspectors and
Valder showed the prepared grand jury statements to Spartin
during his polygraph examination, and that they shared inves-
tigative materials—allegedly including grand jury evidence—
with Bolger’s ousted successor as PMG, Paul Carlin.
Considering all this evidence together and interpreting it in
Moore’s favor, we cannot conclude that the postal inspectors
would have prosecuted Moore had they not been irked by his
aggressive lobbying against Zip v 4. The evidence of retal-
iatory motive comes close to the proverbial smoking gun: in
addition to subpoenas targeting expressive activity, Moore
has produced not one, but two Postal Inspection Service
documents specifically referring to his lobbying as a rationale
for prosecution. At the same time, evidence of guilt seems
quite weak: not only did none of the admitted conspirators
implicate Moore, but even the U.S. Attorney’s Office conclud-
ed that, at best, Moore ‘‘probably’’ knew about the charged
conspiracies, and even that conclusion rested on the assump-
tion that Reedy likely shared with Moore his misgivings about
Gnau and Voss—an assumption the record fails to substanti-
ate. Moreover, the U.S. Attorney’s Office warned that the
case would be ‘‘complicated’’ and ‘‘consume significant re-
sources’’—considerations that, under normal circumstances,
might weigh against prosecuting a marginal case. Applying
the Haynesworth test, we believe this combination of fac-
tors—complexity and expense plus strong indications of retal-
iation and weak evidence of probable cause—suggests not
only that hostility to free expression was at least a motivating
factor in Moore’s prosecution, but also that the inspectors
may be unable to rebut that inference. Accordingly, Moore
has alleged the violation of a constitutional right, precluding
summary judgment under the first element of the qualified
immunity test.
Was the Law Clearly Established?
As to the qualified immunity test’s second element,
Haynesworth again stands as the key authority. Decided in
24
1987, a year before Moore’s indictment, Haynesworth clearly
stated the elements of retaliatory prosecution, leaving no
doubt that government officials could be liable for pressing
charges they would not have pursued without bad motive.
Our conclusion, then, that the inspectors’ conduct was action-
able under Haynesworth constrains us to hold that Moore has
alleged the violation of a clearly established right.
The inspectors’ argument to the contrary misapprehends
the standard for clear law. True, Haynesworth stated the
elements of retaliatory prosecution ‘‘without analysis in a
footnote in an opinion generally addressing other issues.’’
(Reply Br. at 12.) But as we noted earlier, Haynesworth’s
description of the elements was part of its holding, and hence
binding precedent, even if it appeared in a footnote. In any
event, qualified immunity requires only that the law be clear,
not that it be stated prominently or elaborately. Here,
Haynesworth established the elements of retaliatory prosecu-
tion, making plain that what the inspectors were doing—
prosecuting a case they otherwise would have left alone—
violated the First Amendment. See Anderson, 483 U.S. at
640; Butera, 235 F.3d at 646. Neither Haynesworth’s pur-
ported lack of analysis nor its use of a footnote freed the
Postal Service from the obligation to take note of the opinion
and instruct its inspectors accordingly.
Nor did the decisions of other courts give the government
reason to doubt that Haynesworth meant what it said. The
law of other circuits may be relevant to qualified immunity,
but only in the event that no cases of ‘‘controlling authority’’
exist in the jurisdiction where the challenged action occurred.
See Wilson, 526 U.S. at 617. Here, a decision of this court—
Haynesworth—provided guidance on exactly the issue the
inspectors confronted. Moreover, even if cases from other
jurisdictions could somehow infuse Haynesworth with ambi-
guity, they did not do so before 1988, for nearly all decisions
on which the inspectors rely came later. At the time of
Moore’s indictment, only the Third Circuit required lack of
probable cause, see Losch v. Borough of Parkesburg, 736 F.2d
903, 906-09 (3d Cir. 1984), although the Eleventh Circuit had
hinted at such a requirement in Motes v. Myers, 810 F.2d
25
1055, 1060 (11th Cir. 1987); see also Redd v. City of Enter-
prise, 140 F.3d 1378, 1383 (11th Cir. 1998). In contrast, and
also at the time of Moore’s indictment, the Fifth Circuit,
though later embracing the Third Circuit’s view, see Keenan,
290 F.3d at 260, had stated that an enforcement practice
could be unconstitutional ‘‘if those who file such charges upon
probable cause can be presumed to be motivated by a retribu-
tive purpose,’’ Gates v. City of Dallas, 729 F.2d 343, 346 (5th
Cir. 1984); cf. Izen v. Catalina, 382 F.3d 566, 571-72 (5th Cir.
2004) (holding that although ‘‘the government need not have
even reasonable suspicion to undertake an investigation,’’ an
investigation undertaken ‘‘with the substantial motivation of
retaliating’’ against protected speech may violate the First
Amendment). Against this ambiguous background—at best,
two circuits immunizing prosecutions based on probable cause
and one apparently not—Postal Service officials could not
reasonably have read Haynesworth to require lack of proba-
ble cause.
To sum up, because Haynesworth’s framework for Moore’s
claim is incompatible with the probable cause-based standard
the inspectors advocate, we conclude that the Postal Service
had, as the Supreme Court put it in Hope, 536 U.S. at 741,
‘‘fair warning’’ that government officers could be liable under
the circumstances alleged here. Agreeing with the district
court, we therefore reject the inspectors’ claim of qualified
immunity.
IV.
Some fifteen years after the district court dismissed the
indictment and found evidence probative of Moore’s innocence
and thirteen years after Moore filed his first complaint,
Moore’s attorney quipped at oral argument: ‘‘I suppose I’d be
the poster boy that a lawyer has to be crazy to take a Bivens
case because you die before it ends.’’ We trust this opinion
will reassure both sides—Moore and the postal inspectors—
that this case may now be resolved within the lifetime of their
attorneys. With the inspectors’ immunity theory dispatched,
nothing stands in the way of a judgment on the merits;
26
indeed, because the district court found material issues of fact
in the record, the next step, presumably, will be preparation
for trial. We affirm the decision of the district court and
remand the case for further proceedings consistent with this
opinion.
So ordered.