Moore v. Hartman

MOORE, G. Jr. William al., Appellees

et al., Appellants.

Michael HARTMAN et

No. 10-5334. Appeals, States Court of

United Circuit.

District Columbia

Argued April 15, 2011. July

Decided Hancock, Attorney, Y. United

Catherine Justice, argued the Department of States West, Tony As- appellants. cause for General, Ronald C. Ma- Attorney sistant Jr., Attorney, and Bar- chen United States Attorney, were on brief. Herwig, L. bara Attorney, entered Montague, Richard appearance. the cause argued Michael Pohl

Paul Kocher, Bryan D. Christian appellees. Kotuby, T. Jr. and Charles Vergonis G. on brief. were HENDERSON, ROGERS and Before: KAVANAUGH, Judges. Circuit for the Court filed Circuit Opinion Judge HENDERSON.

Concurring opinion filed Circuit HENDERSON. Judge HENDERSON, KAREN LECRAFT Judge: Circuit alleges that six U.S. G. Moore William (Postal Inspectors) Inspectors Postal criminally prose- him be caused wrongly criticism public for his cuted in retaliation Service States Postal the United (USPS) In- The Postal personnel. and its denial the district court’s spectors appeal summary judgment, motion for of their immunity, on Moore’s based prosecu- claim of speech right of his to free tion in violation Amendment to United under the First reasons set For the States Constitution. below, and dismiss part we affirm out part.

I. chief Moore was the early In the 1980s Inc. Equipment Recognition executive (REI), publicly-traded corporation, which discovered that chairman, pursuing a contract to GAI’s multiple- Gnau, Jr., sell its John R. had paid kickbacks to optical line character Voss in return readers to USPS for for Voss (and having referred REI other scanning postal compa- use in addresses. At the nies) to They GAI. further time, learned that many top of USPS’s officials were president GAI Spartin William and vice advocating purchasing single-line scanners president Michael Marcus were also in- to use with “zip USPS’s new + 4” nine- volved in the scheme. In April Spar- digit zip codes. REI lobbied members of tin an agreement entered with the govern- Congress the United States and Moore ment in agreed, which he in exchange for personally congressional testified before immunity, to cooperate with the govern- in opposition committees + zip investigation ment’s and eventual criminal codes and in favor multiple-line scan- prosecution of the participants in the addition, ners. In notwithstanding the Spartin’s scheme. With cooperation, the United States Postmaster General’s admo- secured guilty pleas from quiet,” nition “to be REI public hired rela- Voss, Gnau and Marcus to offenses related (GAI) Associates, tions firm Gnau and Inc. giving and receipt of illegal gratui- to advocate on REI’s behalf. Hartman v. ties. “Notwithstanding very limited evi- Moore, 250, 253, dence linking Moore and REI any (2006) (Moore IV). 164 L.Ed.2d 441 GAI wrongdoing,” Moore 253- had been recommended to Moore Peter then-Assistant United Voss, a member of USPS’s Board of Gov- Attorney States Joseph B. Valder filed ernors. criminal charges against and, them on Oc- 6, 1988, tober grand federal jury indicted lobbying REI’s efforts bore fruit in July them, along with REI president vice Rob- USPS, 1985 when at the urging of several Reedy, ert on seven counts involving fraud members of the Congress, changed course and theft —all stemming from at- REI’s and decided to use multiple-line scanners tempts to contract with USPS for its mul- after yielding many critics all— tiple-line scanners.1 (both without) within the government and opposed who November six nine-digit weeks into zip codes and ensuing trial, bench single-line the district court scanners. Unfortunately granted REI, defendants’ motion however, judg- for for pur- USPS decided to ment of acquittal at the close of gov- multiple-line chase scanners from one of case, ernment’s concluding that gov- REI’s competitors decision Moore at- —a ernment had failed to prima establish a tributes to retaliation for his criticism of facie case. United States v. Recognition zip USPS and the + 4 codes. To make Inc., Equip. F.Supp. 587, worse, shortly thereafter, matters USPS (D.D.C.1989). instigated an investigation of a kickback which, maintained, scheme in it Moore was On November Moore filed this a participant. Bivens2 action in the Northern District of charged The indictment (18 defendants with §§ each of mail fraud U.S.C. (id. conspiracy 2). one count each of §§ defraud the wire fraud (18 371), (id. United § States U.S.C. theft 1707, 2) §§ receiving property stolen 2. See v. Agents Bivens Six Unknown Named (D.C.Code 22-3832(a), (c)(1) 22-105) §§ Narcotics, Fed. Bureau (now 22-3232, 22-1805) §§ and two counts key prosecu- jury testimony to resided, grand alleging that

Texas, he where witness. tion postal named and six Valder prosecutor rights under him of deprived inspectors Valder, 92-cv-2288 & 93- Nos. First, Fifth Amendments Fourth 2003). (D.D.C. On inter- Aug. cv-0324 and as- States Constitution to the United rely- Inspectors, locutory appeal the Postal under the tort claims supplemental serting authority, argued that ing on extra-Cireuit the District and of laws of Texas local they were entitled defamation, priva- invasion of Columbia they record established and mali- arrest, process abuse cy, false cause, the ab- acted based subsequently Moore prosecution. cious qua non of a First of which is sine sence prose- action for malicious separate filed retaliatory Amendment pursuant the United States against cution prosecution claim. (FTCA), Act Tort Claims to the Federal summary judgment de- affirmed the We actions 2671-80. The two §§ U.S.C. law of nial because “the established Dis- to the United States transferred were officials circuit this barred District of Columbia for the trict Court charges they would not bringing from has since been The case and consolidated. motive, regard- retaliatory pursued absent ladder, dispos- litigation and down the up had, they less whether claims: the all but two of Moore’s ing of Hartman, 388 F.3d do so.” Moore v. retaliatory prosecu- inducement to Bivens (Moore III) (D.C.Cir.2004) (emphasis prose- malicious tion claim and the FTCA added). the re- claim. now summarize cution We Court Supreme The States United history as it relates procedural cent reversed, holding granted certiorari and interloc- at issue in this latest single claim retaliatory prosecu inducement to that a retaliatory in- utory appeal, the Bivens prove plead tion claimant must prosecution claim.3 ducement cause as an element absence of court, appeals two to this after 265-66, his case. Moore a mo- on remand denied the district court no-probable-cause re 126 S.Ct. 1695. by the summary judgment filed tion for wrote, justified, the Court quirement is un- Inspectors one-paragraph in a Postal a chain of prove “the need to because of order, stating: published de injury, animus to with causation from retaliatory-prosecution specific of de- tails consideration of the motion Upon 1695. Unlike cases.” Id. at fendants, and Michael United States torts, al., retaliatory constitutional Hartman, summary judgment other et retaliatory inducement thereto, explained, the Motion for Court response and the af special two issues prosecution involves Summary is DENIED. Judgment (1) evidence of causation: dispute. fecting proof material facts There are always non will showing probable cause vel the facts sur- significant The most are highly body “a be available as distinct of evidence to rounding presentation apt ... evidence valuable circumstantial jury the disclosure of grand States, (D.C.Cir.) (Moore history, United 213 F.3d intervening procedural see 3. For the denied, II), Hartman, cert. & 93-cv- Nos. 92-cv-2288 Moore v. (D.D.C. In the course of Sept. WL 405785 Valder, (D.C.Cir. lengthy litigation, two of the defendant 1993); Moore v. 65 F.3d died, denied, whom has been re 1995) (Moore I), one of cert. (1996); by personal representative. placed 136 L.Ed.2d causation”; retaliatory him. prove disprove against or And because absence of requisite “the causation between is an element both retaliatory the defendant’s animus plaintiffs Bivens prose- injury usually complex more claim cution and his prosecu- malicious be- than it is other retaliation cases” FTCA, tion claim under the the court cause the must show not grants the defendants’ motion for sum- “the official in retali- nonprosecuting acted mary judgment as to both claims. prose- “that he ation” but also induced the Id. at 141. charges bring cutor to that would not have appealed and we vacated the urging” been initiated without re- his —a grant summary judgment, concluding quirement met found must be “the holding erred plaintiffs showing lack that an indictment is conclusive evidence of 261-63, cause. Id. at Af- S.Ct. 1695. probable cause a subsequent retaliatory Court, ter the Supreme remand from or malicious action.” Moore v. remanded to the district court further “for Hartman, (D.C.Cir.2009) proceedings consistent with the (Moore V). We first the recited evidence decision,” noting Court’s that the district on which Moore relied to show lack of previously “expressed had no view probable cause: either on there probable whether was First, the prosecutor made statements support cause to Moore’s or on jury grand to “not witnesses to reveal” probable the relationship to the cause portions certain testimony their Inspectors’ qualified immunity.” Moore v. Second, grand jury. Hartman, (D.C.Cir. attorneys senior in Aug. No. 03-5241 Attorney’s the allegedly Office stat- (unpublished). ed in memoranda government’s that the The Postal for again moved against appellant evidence was “ex- time, in summary judgment 2007. This thin,” tremely questioned and openly granted the district court the motion on charges whether brought should be ground conclusively the indictment the es- Third, against appellant. postal the in- probable tablished Moore spectors stated in a memorandum after allege had failed to “misconduct” the jury the grand investigation that wit- grand jury proceeding that “undermine[d] testify could appellant nesses validity sufficiently the of the indictment to not aware of the conspiracy. Finally, negate its conclusive effect as to postal inspectors the improperly showed Hartman, cause.” Moore Spartin GAI Officer other witnesses’ (D.D.C.2008). F.Supp.2d The jury statements, grand intimidated court concluded: by Spartin threatening prosecute his Because the has no presented tearing up son plea agreement, his ques- evidence that causes the court to Attorney’s and lobbied the U.S. Office to validity tion grand jury pro- the the prosecute appellant. ceeding, conclusively the indictment es- government tablishes the had Id. at 65.4 We then for remanded charges cause to bring the district court to determine “whether the III, already In we had prosecuted they concluded: Moore had not been "Considering together th[e] all evidence aggressive against lobbying Zip irked his favor, interpreting in Moore's cannot it we + F.3d at 4." 388 884. We noted: postal inspectors conclude that would In The district court denied the Postal forth put is sufficient appellant evidence Hartman, spectors’ under Moore v. presumption motion. this overcome (Moore VI). (D.D.C.2010) standard,” namely, a facie “prima F.Supp.2d 174 proper pre- a rebuttable creates highlighted standard Citing [that] the evidence until appellant V, that will stand sumption court concluded: the district it.” negate evidence to sufficient evidence, introduces “Based on reasonable fact- this Frito-Lay, Inc. v. Wil- (citing Id. at 69 government that the finder conclude could (D.C.Cir. F.2d loughby, 863 procured through indictment 1988)). we instructed the particular, wrongful undertaken bad faith conduct district court: lacked remand, district court will

On plaintiff.” prosecute Id. account the rebuttable take into omitted). course (quotation marks cause, in favor presumption timely The filed a no- Postal Inspectors appel- also consider whether but should appeal. tice of enough evidence to cre- has offered lant issue of material fact as genuine ate a II. veracity, sufficiency legitimacy, grand presented to the of the evidence three elements of Bivens carry presumption, jury. Given prose action present evidence he must his burden are: cution was produced the indictment appellant’s allegedly conduct re- fraud, perjury, fabricated ev- corruption, sought taliated or to be deterred against idence, wrongful under- or other conduct (2) constitutionally the protected; was faith. taken in bad criminal bringing of the government’s

Id. at prosecution was motivated least remand, Postal re- On the for to retaliate or to part purpose a summary judg- their motion for newed (3) conduct; govern- the deter that (1) ment, probable cause asserting the bring ment lacked failed Moore to overcome existed because against appel- criminal prosecution and, in presumption cause lant. event, any proba- the evidence established V, The (2) F.3d at 65. Postal 571 even if was no ble cause and there cause, Inspectors challenge the court’s the defendants were enti- treatment the third element on two a rea- of tled to addressing the grounds. have Before merits official could believed there sonable arguments, their we first consider whether cause. was conspiracies, and even that conclusion rest- evidence of motive comes proverbial smoking gun: Reedy likely assumption close to ed on subpoenas targeting expressive addition to misgivings shared with Moore his about one, activity, produced Moore has not but assumption the Gnau record and Voss—an Inspection Service documents two Postal Moreover, to U.S. fails substantiate. referring lobbying to his specifically as Attorney's warned that the case Office prosecution. At the same rationale time, sig- "complicated” would and "consume be guilt quite weak: evidence of seems that, nificant resources”—considerations conspira- not did none of admitted circumstances, might weigh under normal Moore, implicate but even the U.S. tors marginal against prosecuting a case. best, that, Attorney's concluded Office Id. at 884-85. charged "probably” knew about the “ diately jurisdiction appealable we have and what extent because it ‘conclusive ly Inspectors’ of the the defendant determine^]’ review the denial must discovery; bear the burdens is ‘concep summary judgment motion. tually from distinct plain merits “Ordinarily, denying orders sum claim’; tiffs prove would ‘effectively mary judgment qualify do not as ‘final appeal unreviewable from final judg subject appeal.” decisions’ Ortiz v. Jor ” — —, ment.’ v. Iqbal, U.S. Ashcroft —dan, U.S. —, 884, 891, 131 S.Ct. 1937, 1946, 173 L.Ed.2d 868 (2011) (quoting L.Ed.2d 703 U.S.C. (2009) (quoting Forsyth, Mitchell v. 1291). § summary judgment A order de 530, 527-28, U.S. 2806 (citing S.Ct. however, nying qualified immunity, pres Cohen v. Corp., Indus. Loan Beneficial special Qualified immunity ents a case. 337 U.S. 93 L.Ed. “protects government officials ‘from liabili (1949))). exception This is signifi ty damages as their for civil insofar con limited, however, cantly in that “a defen duct violate does not established dant, entitled to a qualified invoke immuni statutory rights of or constitutional which defense, ty may appeal not a district ” person reasonable would known.’ summary court’s judgment order insofar Callahan, Pearson v. as that order determines or whether not S.Ct. pretrial record a ‘genuine’ sets forth (quoting Fitzgerald, v. Harlow Jones, issue fact for trial.” Johnson 304, 319-20, (1982)). means: This L.Ed.2d 238 In articulating this expected Where an official could be limitation, explained know that certain conduct would violate “ that, considering after ‘competing statutory rights, constitutional he or ” comparative of “delay, considerations’ ex- hesitate; a per- should be made pertise courts, and appellate trial injury son who such suffers caused resources,” wise appellate use of the Court may conduct have a action. “persuaded ‘[i]mmunity appeals legitimate- But an official’s duties where ... judgment interfere less with final the ly require clearly in action which estab- they rule if present- ” limited to cases [are] are not the rights implicated, pub- lished ing neat abstract law.’ issues of Id. at may lic interest be better served 317, (quoting 115 S.Ct. 2151 5A Charles action with and independence taken Alan Arthur Wright, R. Miller & Edward consequences. without of fear H. Cooper, Federal Practice and Proce- Harlow, 457 U.S. 102 S.Ct. 2727 (alterations 3914.10, (1992)) § dure at 664 (footnote omitted). quotation & internal Johnson). Thus, ellipsis in summary qualified immunity “Because a of can plea judgment denying qualified orders immu- spare liability an official not from but nity immediately are appealable only trial,” Supreme from has recog Court they “when resolve a dispute concerning exception nized “a the categori limited relating qual- issu[e] ‘abstract of lav/ summary zation of judgment denials as ified issue immunity typically, the wheth- — Ortiz, nonappealable orders.” 131 S.Ct. at right allegedly infringed er the federal (citing Forsyth, 891 Mitchell v. 472 Pelletier, clearly established.” Behrens v. 525-26, 105 299, 313, S.Ct. 86 L.Ed.2d 411 516 U.S. 116 S.Ct. 133 (1985)) added). (1996) Johnson, it (emphasis “Provided (quoting L.Ed.2d 773 515 ” (alteration 2151) law,’ ‘turns on an of a district-court issue U.S. at in Behrens) (other qualified quotation order is imme- internal omit- denying 422 of 28 meaning “final within the

ted).5 argu- decision[ ]” first Inspectors’ The Postal § U.S.C. 1291.6 fails this test. ment Next, as Inspectors the Postal Inspectors first chal The Postal in their evidentiary investigator sert that a reasonable sufficiency of lenge concluded, based on position determination could court’s basis for district evidence, probable cause existed issue material genuine “there is a alleging In prosecute lacked to Moore. a suit government fact as to whether [Moore],” of the arrest or violation prosecute cause to probable Amendment, VI, who at 175. This is Fourth defendant F.Supp.2d 730 “ determination, ‘mistakenly concluded] howev the sort of precisely present’” held cause is nonetheless entitled er, in John that the immunity “if offi immediately appealable. ‘a reasonable is not son V, [the cer could have believed to be arrest] remanded lawful, light law appellant has established court to “consider whether [arresting] information the officers enough genu to create a offered evidence Hunter v. legiti possessed.’” Bryant, fact as ine issue material 224, 227, veracity, sufficiency 112 L.Ed.2d 589 macy, of the evi grand jury.” (quoting Creighton, Anderson v. presented to the dence remand, at 69. On the district court U.S. F.3d Pickett, (1987)); just that —it examined see also Wardlaw v.

did evidence 1297, 1304-05(D.C.Cir.1993), that, thereon, F.3d cert. de decided “a rea based nied, 2672, 129 could conclude that the sonable factfinder if procured the indict Such a reasonable government L.Ed.2d 808 exists through wrongful conduct undertak mistaken belief ment “arguable probable faith and that the is sometimes termed en bad See, prosecute City cause.” Au e.g., lacked Grider v. burn, VI, Ala., F.Supp.2d at 179 Cir. plaintiff.” Moore omitted). cause”); (defining “arguable (quotation marks Under John Ill., son, Palatine, jurisdiction stage Village we lack at this of Carmichael v. (7th Cir.2010) (same); to review the fact- F.3d Escal proceeding court’s (2d Lunn, it F.3d Cir. based determination because is not a era primarily argue Johnson 6. The that we should 5. The Court was concerned review the evidence de the dis- novo because court's de- that review the district factual record to trict court "failed review the summary judgment terminations on would re- supported determine what facts its conclusion quire appellate "to court consult a 'vast pre- plaintiff successfully that rebutted record, conflicting pretrial numerous af- with sumption probable Appellants’ Br. cause.” fidavits, depositions, discovery and other ma- ” 55. It is true that Johnson terials,’ Iqbal, (quoting S.Ct. at 1947 129 acknowledged "occasionally,” "a Court that Johnson, 316, 515 U.S. at —a may appeals to undertake a point appeal well this in which illustrated deter- cumbersome review of the record to parties joint appendix. a 23-volume filed court, light mine in the what facts concluded, however, Iqbal The likely nonmoving party, most favorable justify extending same concern does not Johnson, at 115 assumed.” a denial of a Johnson limitation to motion S.Ct. is not a case. The 2151. This such appellate dismiss where the court "consid- specificity adequate out with district court set allegations contained er[s] within the “evidence” on which it relied. See Moore complaint.” corners [the] four Id. VI, F.Supp.2d at 179. 730

423 2004) (same). added) probable (emphasis This cause shields zures” is whether the from a Fourth Amendment action probable a defendant taken is based on claim wrongful prosecution person as well as believe the committed a crime. See claim. Malhoyt, Fourth Amendment arrest See Gri- Martin v. 830 F.2d 262 (D.C.Cir.1987) (“It der, 25; n. 618 F.3d at 1257 Droz v. is well settled that an (2d McCadden, probable 580 F.3d Cir. arrest without cause violates the 2009).7 amendment.”) applies Whether the doctrine as fourth (citing Gerstein v. Pugh, to Moore’s inducement to well U.S. (1975)); claim the First

prosecution under Amend- Pitt v. District Co- constitutes, believe, lumbia, (D.C.Cir. an ment issue suffi- 491 F.3d 2007) (“We ciently legal qualified join to come within the the large majority of cir- immunity exception holding to the final decision cuits in prosecution malicious Behrens, § rule.8 See 516 U.S. at 116 is actionable under U.S.C. 1983 the (immediately appealable issue is extent that S.Ct. the defendant’s actions cause “typically right ... whether the federal unreasonably to be ‘seized’ allegedly infringed cause, probable estab- without in violation of the lished”) Amendment.”). omitted); (quotation Thus, marks Fourth in a Fourth suit, n. 126 S.Ct. 1695 Amendment the defendant’s entitle- (requirement probable to show absence of ment to immunity often turns on comes “reasonably cause within definition tort and is whether he mistakenly but “directly implicated by the qual- defense of pres- concluded] cause is ent,” is, properly ified before us on that whether he argua- acted with interlocutory appeal”). Accordingly, Hunter, we ble cause. 502 U.S. at argument address this Anderson, its merits and 534 (quoting 3034); that arguable probable see, Droz, conclude e.g., apply 109; does not to a First Frye Amendment re- 580 F.3d at City, Kansas Mo. taliatory (8th prosecution inducement to case Dep’t, Police 375 F.3d Cir. 2004). cause is not an element Unlike the Fourth Amendment claim, however, right allegedly of the First Amendment the First Amendment does require violated. not itself lack of probable cause in order to a retaliatory establish keystone to whether an arrest prosecution claim. or violates individual’s right Fourth Amendment “to be guarantees secure The First Amendment ... against unreasonable rights searches and sei- various that have been found to IV); Huntsville, Ala., Although City this Circuit has not used the term Brown v. cause," "arguable probable applied we have Cir.2010) (citing cir- Wardlaw, comparable analysis. See 1 F.3d at IV). precedent going pre-Moore cuit back ("[A]ssuming arguendo Other circuits have read Moore IV not lacking, deputies’ cause was conclusion require no-probable-cause showing in retal- objectively that cause existed was iatory McLaugh- arrest cases. See v. Howards reasonable.”). lin, 1131, (10th Cir.2011) 634 F.3d 1147-48 (noting split post-Moore reject- circuit IV and required 8. At least two circuits have a no- ing requirement); Skoog Cnty. v. Clacka- probable-cause showing for First Amendment mas, 1221, 469 F.3d 1231-32 & n. 31 retaliatory arrest claims and have extended Cir.2006) (same). We have no occasion to "arguable probable cause” doctrine to Parker, retaliatory address First Amendment airest re- such arrests. See McCabe v. 1068, (8th Cir.2010) (relying quirements here.

424 1695; in re tutional tort.” at punishment Id. S.Ct.

prohibit governmental (“[I]n specifically, their taliation for id. this instance we could de- see exercise— right speech. to free analysis, for our bate whether the closer common-law ana- Robbins, 555- See Wilkie v. retaliatory log prosecution is malicious (2007) (with prosecution no-probable-cause its el- recognition (noting “longstanding Court’s ement) (without it).”). or of process abuse may not retaliate for Government purport prob- Nor did Moore IV to add no exercising speech First Amendment cause as an able element of First (Gins id. at 127 S.Ct. 2588 rights”); Amendment retaliation violation. As we J, concurring part dissenting burg, 418-19, explained supra, pp. Moore IV (“The has held that part) simply noprobable-cause introduced a may unnecessarily penal Government not proof requirement into the remedial rights. ize the exercise of constitutional recovering retaliatory framework for in a applied, principle This has been most no prosecution requiring suit — tably, protect guaranteed the freedoms pleaded proven,” that it “must be “as Amendment.”). by “The the First reason case,” an element of a in order why such retaliation offends the Constitu requisite to establish the causal connection tion is that it threatens to inhibit exercise 265-66, in such a suit. 547 at U.S. right.” protected of the Crawford-El plaintiff S.Ct. 1695. The “must show a Britton, n. U.S. causal connection between defendant’s (1998); accord retaliatory subsequent injury animus and IV, at U.S. 126 S.Ct. 1695 in any sort of retaliation action” and often (“Official reprisal for protected speech of may circumstantially do so simply of- fends the Constitution because it threat- fering retaliatory the fact of a motive and protected ens inhibit exercise of the IV, injury. the infliction of an right....”) (quotation and alteration omit- 259-60, U.S. at For an S.Ct. 1695. ted). prosecution among Criminal this, inducement-to-prosecute case such as retaliatory government actions that violate however, determined, the Moore IV Court the First Amendment. See Moore above, special as we noted that a rule (“[A]s gener- S.Ct. 1695 proof is needed—one requires which prohibits al matter the First Amendment proving establish causation subjecting officials from the absence of cause. The court actions, retaliatory individual to including requirement added this of two out.”). prosecutions, speaking criminal peculiar litigation characteristics nothing But about the First Amendment’s (1) such a suit: happenstance right speech to free or the concomitant always “there body will be a distinct right to be free from punishment therefor highly valuable circumstantial evidence suggests any right connection between the apt prove disprove available and or re- criminal “probable cause.” And the causation, taliatory namely evidence show- Court identified no such connec- ing whether there or proba- was was not fact, tion in Moore IV. the Court re- bring ble cause to charge” the criminal jected Inspectors’ argument the Postal greater complexity of “the retaliatory Fmst Amendment induce- requisite causation between the defen- prosecution ment to is “a close cousin of law, dant’s plain- malicious animus and the under common injury” making noprobable-cause the latter’s re- tiffs Id. 126 S.Ct. 1695. quirement a natural complexity feature of the consti- The causal arises from the fact that, plaintiffs alleging us, unlike other retal- causation: “It open would be to of acts,9 course, iatory retaliatory a inducement to give special no prominence to an prosecution plaintiff must show the absence of in bridging the nonprosecuting only defendant official not gap, causal and to address this distinct acted in retaliation but also “induced the causation concern at a merely general lev- prosecutor bring charges that would el, leaving it to such pleading proof as not have initiated urg- been without his 264, the circumstances allow.” Id. at 262, ing.” only Id. at 126 S.Ct. 1695. Not sum, S.Ct. 1695. the of proba- absence require does a two-step this causal show- ble cause is not an element of the free ing retaliatory animus and actual speech right allegedly violated in a First —both complicated inducement —it is further retaliatory Amendment the step second because “there is an add- prosecution case and for this reason its legal longstanding pre- ed obstacle presence vel non has no bearing on wheth- sumption regularity of to prose- accorded er a defendant has violated a “clearly es- 263, cutorial decisionmaking.” Id. at ... tablished constitutional right of [ ] Thus, IV, S.Ct. 1695. the Su- which a person reasonable would have preme concluded: Harlow, 818, known.” 457 U.S. at then, allegation,

Some sort of is needed added); (emphasis S.Ct. 2727 see Wilson v. bridge gap both to between the non- Layne, 526 U.S. 119 S.Ct. prosecuting government agent’s motive (1999)(“[A]s 143 L.Ed.2d 818 explained action, prosecutor’s and the and to ad- Anderson, right allegedly violated presumption prosecutorial dress the must be defined at appropriate level of regularity. stage, And the trial some specificity before a court can determine if evidence must link the allegedly retalia- it was established.” (citing tory prosecutor official to a whose action Anderson, 483 U.S. at 107 S.Ct. injured has plaintiff. connec- added)). Rather, (emphasis tion, shown, alleged to be is the ability vel non to plead prove absence of cause. absence of probable cause determines only however, time, showing Id. At the same the Court whether he has made a of causa- expressly recognized prob- through role tion specific limited means the court a plays prove able cause as mechanism to mandates.10 The right contours of the retaliatory 9. For acts other than 10. That the absence of cause is requirement that have proving been found to violate the First a remedial for causation Amendment, see, (and e.g., Cty. Bd. Comm’rs v. an element not First Amendment Umbehr, 668, 674-75, 686, violation) right 518 U.S. or its is reinforced (1996) (termi- distinction three circuits have drawn between by county "ordinary” single-actor retaliatory nation of contract in retaliation prose (or arrest) case, county contractor’s criticism require its com- cution which does not missioners); Britton, supra no-probable-cause showing, and an induce Crawford—El this, (misdirecting prisoner's belong- transferred ment case such as where causation is ings reporter complex in retaliation for interview with "more than it is in other retaliation cases,” regarding prison overcrowding); Perry v. Sin- 547 U.S. at dermann, showing required. and such See (1972) (retaliatory McLaughlin, L.Ed.2d 570 nonrenewal Howards v. contract); junior Cir.211) college professor’s (noting "split state circuit Educ., Pickering v. Bd. applies retaliatory 566- over whether [MooreIF] “declining] arrests” and [Moore to extend (retaliatory firing writing pub- ‘no-probable-cause’ requirement of teacher for /F]'s to this criticizing lic letter school board’s financial arrest case” inasmuch as officers administration). alleged were to have arrested “with -, retaliatory inducement to U.S. 129 S.Ct. 173 L.Ed.2d be free from sufficiently clear that the prosecution Supreme were Under the Court’s expected “could be to Inspectors Postal v. holding, Johnson Jones the district whether their conduct know” at the time finding disputed court’s of issues of fact is Harlow, the First Amendment. violated interlocutory appeal. unreviewable on See 2727. Accord- U.S. Goemmer, Krout v. 583 F.3d ingly, arguable we conclude the doctrine of (“[I]f Cir.2009) the issues raised on apply not to a First probable cause does causation, appeal relate to ... or other retaliatory to Amendment similar matters must con- prosecution claim. This conclusion is prove, jurisdiction we have no to review decision sistent with the Court’s in interlocutory appeal them an of a denial which, notwithstanding Moore IV of a summary-judgment motion based on reviewing interlocutory qual- Court was qualified immunity.” (emphasis original) denial, “probable ified held that omitted)); (quotation DeReyes, Wilkins v. (not cause) arguable probable cause” must (10th Cir.2008) (court 528 F.3d pleaded proven as an element be jurisdiction any has “no causa- address plaintiffs case order to establish a caus- tion deciding issues” when case “at the al link inducing prose- between those qualified immunity stage”); Charles v. prosecutors cution and the themselves. (5th Cir.2008) Grief, 522 F.3d IV, 265-66, Moore (where “clearly [plain- court ruled produced tiff] sufficient evidence to show bottom, Inspectors’ argua- At the Postal genuine there existed a issue of mate- argument nothing ble causation,” rial fact on the issue of attempt juris- more than an to end-run the jurisdiction appeal[ over such “lack[ed] ] dictional on interlocutory limitation review. qualified immunity”). fact-based denial[ ] They seek to frame as a immuni- proba- Whether the Postal had ty challenge defense what is in fact a disputed ble cause is a issue of fact to be the district court’s determination that a jurors decided at trial. disputed issue of fact exists on the issue reasons, For foregoing causation, insofar as the be determined the exis- appeal challenges the district court’s deter- tence vel non of cause. See mination that Dominguez Hendley, genuine v. there are issues of 545 F.3d (7th Cir.2008) fact, (“[Qualified disputed it for immunity is a dismiss lack of designed jurisdiction. doctrine respond legal un- Insofar as the district court (a matter) certainty, but causation factual declined to find the Inspectors pro- nothing legal uncertainty.”) by qualified immunity has to do with tected based on “ar- — cert, denied, (emphasis in original), cause,” guable probable we affirm. Ac- motives, tant”; their own distinguishing Wright, because of the Barnes v. (6th Cir.2006), rights”— exercise of his First Amendment applied F.3d which quintessential 'ordinary no-probable-cause “the requirement retaliation to arrest as (citing prosecution claim' as outlined in [Moore IV] well as because defendants ar- 259-60, plaintiff only 547 U.S. at inducing grand jury rested after 1695)); Hills, Clackamas, Kennedy City him); Ky., v. Skoog Cnty. Villa to indict (6th Cir.2011) (not (9th Cir.2006) requir (no-proba- F.3d 217 n. ing no-probable-cause showing showing required for claims of ble-cause was not arrest, simple retaliatory concluding TV "retaliation claim ... not involve multi- d[id] applies wrongful layered "to claims of arrest causation as did the claim in [Moore IVY). when and arrest are concomi- we remand to the district cordingly, the merits.

for trial on

So ordered. HENDERSON,

KAREN LECRAFT Judge, concurring:

Circuit dismay separately express

I write the herculean effort the has

over expend simply get day his

had twenty-five years, It taken

court. has trial, appellate judges as

criminal eleven all of the participating

well as members

United States Court —not one rejected claim a

whom has his as matter of get point jury

law—to that a will if

finally hear and decide offi- engaged pay-back

cials because the

plaintiff sought to do business with the say that

government. To this has not government’s

been the finest hour is a

colossal, lamentable, understatement.

Sonya PETTAWAY, Appellant AND

TEACHERS INSURANCE

ANNUITY OF ASSOCIATION

AMERICA, al., Appellees. et

No. 10-7062. Appeals,

United States Court of

District of Columbia Circuit.

Argued May 2011. July

Decided

Case Details

Case Name: Moore v. Hartman

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 15, 2011

Citation: 644 F.3d 415

Docket Number: 10-5334

Court Abbreviation: D.C. Cir.