Hartman, Michael, et al. v. Moore, Jr., William (04/26/2006)

Question presented: Whether law enforcement agents may be liable under Bivens v. Six Unknown Named Agents of Federal Burau of Narcotics, 403 U.S. 388 (1971), for retaliatory prosecution in violation of the 1st Amendment when the prosecution was supported by probable cause?

BY MATT BRACKEN, MEDILL NEWS SERVICE

The 1980s were a time of excess spending, excess living and, for the U.S. Postal Service, excess numbers on zip codes.

The USPS had been trying to implement a proposal that added four digits to the normal five-digit zip codes.

Termed "Zip + 4", the USPS initially looked into the venture in the late 1970s, but saw its hopes dashed for the implementation of the nine-digit zip code in July 1981.

A two-year freeze was placed on Zip + 4 by Congress, in addition disallowing the USPS from requiring the nine-digit zip code.

Meanwhile, William G. Moore Jr., the CEO of Recognition Equipment, Inc., a company specializing in optical scanning technology, was trying to convince postal officials to buy his company's new product.

REI had developed a multi-line optical character reader to read zip codes, but Postmaster General William F. Bolger announced in 1983 that the USPS would stick with a single-line optical character reader despite Moore's pleadings.

Moore, however, would not allow his product to be denied without a fight. He lobbied USPS governors and members of Congress, extolling the benefits of his technology.

Moore said REI's multi-line reader was better technologically than the single-line reader, because it was not dependent on the nine-digit zip code.

Backing up Moore's claims were the General Accounting Office and the Office of Technology Assessment's findings that the USPS lost more than one million dollars per day by using single-line readers instead of multi-line ones.

The OTA found that REI's multi-line technology was "fully competitive" and that using single-line readers without Zip + 4 was illogical and inefficient.

Based on these findings, in July 1985, the USPS Board of Governors voted to make the switch from single-line readers to REI's multi-line device.

In the following months, the USPS discovered two criminal plots involving REI in the following months.

A USPS governor and two officers of Gnau & Associates, Inc. eventually pleaded guilty to criminal charges in a kickback scheme. Gnau & Associates was hired by REI as part of Moore's efforts to get the USPS to buy his multi-line readers.

After the guilty pleas, postal inspectors investigated whether Moore, or anyone at REI, had any involvement in or knowledge of Gnau's illegal activities.

In October 1988, a federal grand jury in Washington, D.C. levied a seven-count indictment against Moore, REI and Robert Reedy (REI's Vice President of Marketing) in October 1988. Moore and his co-defendants were acquitted on all charges.

There was a "complete lack of direct evidence to suggest the Defendants knew of the illegal payoff scheme" and "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," the district judge said, in granting a motion for acquittal without the defense needing to put on its case.

With his named cleared, Moore decided to pursue civil compensation from the prosecutor and six postal inspectors who he believed went after him because of his aggressive lobbying for REI's multi-line reader.

He filed two federal suits in the Northern District of Texas, where he lived. The first against the seven individuals alleged a number of constitutional violations, including malicious prosecution and retaliatory prosecution in violation of his 1st Amendment rights to criticize the USPS; the second targeted the United States under the Federal Tort Claims Act.

The court dismissed the claims against the prosecutor on the ground of absolute immunity; dismissed the claims against the postal inspectors, except those for malicious prosecution and retaliatory prosecution; and transferred both cases to federal court in Washington, D.C. That court then dismissed the cases, finding that the claims did not allege an unconstitutional motive, as required under the 1971 U.S. Supreme Court opinion in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics.

Two rounds of appeals and retrials followed, each relating to issues of absolute or qualified immunity, until the case ascended a third time to the Court of Appeals for the District of Columbia.

The court sided unanimously with Moore, reasoning that the postal inspectors were entitled under Bivens to only qualified immunity if they didn't violate a clearly established constitutional right. The court concluded that a retaliatory prosecution against Moore could result in a legal wrong even if there was probable cause for the charges against him, so long as the motive for bringing the prosecution was retaliatory. In noting that there was evidence of the postal inspectors targeting Moore's lobbying for REI's multi-line reader in the face of memos saying that Moore's activities suggested "perfectly innocent business considerations," the court remanded the case for trial on that question.

In so deciding the appeals court sought guidance from one of its 1987 opinions in Haynesworth v. Miller, in which that court provided that the burden of proof shifts to the government officials once the plaintiff shows that their constitutionally protected activities were a factor in the original prosecution. The court noted, though, that decisions of the 2nd, 3rd, 5th, 8th and 11th circuits require "lack of probable cause in retaliatory prosecution actions," but that the 6th and 10th circuits don't.

On June 27, 2005, the U.S. Supreme Court accepted review in the case, limiting review to the first question, noted above, in the government's petition.

Paul Michael Pohl, Moore's attorney, said Moore simply wants a trial to recoup some of the losses for what Pohl says was the equivalent of the "executive career death penalty."

"[Moore] was a vocal critic of postal service management in the media and in Congress," Pohl said. "We all want to think that we live in a country where you won't get indicted if you criticize the government… There's a strong message to government law enforcement to not retaliate against people who exercise their First Amendment rights in criticizing government officials."

On April 26, 2006, the Court reversed by a vote of 5-2. Justice David Souter wrote the majority opinion. Justice Ruth Bader Ginsburg wrote the dissent. Chief Justice John Roberts and Justice Samuel Alito took no part in the case.