A Texas businessman who has fought the government for more than twenty years over allegations of retaliatory prosecution for his criticism of the U.S. Postal Service may finally get a chance to take his claims to a jury.
Voting 2-1 this week, the U.S. Court of Appeals for the D.C. Circuit refused to halt the suit that the businessman, William Moore, filed in Washington's federal trial court in 1992.
The litigation has a long and complex history, centered in large part on whether the defendants, a group of Postal Service inspectors, are entitled to qualified immunity. On that issue, the D.C. Circuit hasn't gone along with the U.S. Justice Department position. DOJ has pressed a series of challenges of court rulings in the case, fighting all the way to the U.S. Supreme Court.
In the latest phase of Moore's case, the D.C. Circuit was tasked with deciding whether a Supreme Court ruling last year in a retaliatory arrest case meant Moore's claims—based on a challenge of his prosecution for his alleged role in a kickback conspiracy—could move forward. On January 15, the appeals court said Moore's suit, which explores the relationship between probable cause and retaliation claims, can proceed.
Moore's attorney, Jones Day partner Paul "Mickey" Pohl, said he's looking forward to trial. The chief allegation in the case is this: a group of U.S. Postal Inspectors induced the criminal prosecution of Moore in retaliation for his public criticism of the agency.
"What the Postal Inspectors did in this case 25 years ago—urged the prosecution of Mr. Moore because he went to the media and to Congress and criticized postal service management—was shameful and would shock most Americans who would likely not believe that government agents would hammer a citizen for exercising First Amendment rights," Pohl wrote in an email.
Pohl said the Postal Service and DOJ "have played hardball at every turn, even trying to keep the damning documents from seeing the light of day."
DOJ lawyers argued recently in the D.C. Circuit that the federal inspectors in the case are entitled to qualified immunity because it wasn't clearly established, in 1988, that an agent who reasonably believes there's probable cause "might nevertheless violate the First Amendment by inducing a prosecution of that individual."
The government said the Supreme Court decision in Reichle v. Howards, in 2012, "undercuts all earlier decisions that held that retaliatory inducement to prosecute can violate the First Amendment even when the defendant could have reasonably believed that the prosecution was supported by probable cause."
Pohl said that in 1988 the law was clear in Washington that "if the officer induced prosecution because of the defendant's protected speech, he violated the Constitution." It didn't matter then, Pohl said, whether there was a legitimate reason to pursue a criminal case.
DOJ says that's not the case. Civil Division appellate lawyer Barbara Herwig said in papers in the D.C. Circuit that after the ruling in Reichle it's "an open question whether there is a right to be free from retaliatory inducement to prosecute if there is probable cause for the prosecution."
The Postal Inspectors, Herwig argued, are entitled to qualified immunity because they could have concluded there was probable cause to prosecute Moore for his role in the criminal scheme.
DOJ lawyers contend there was "ample evidence" in the investigation of Moore, the former chief executive of a publicly traded company called Recognition Equipment Inc, to conclude that his prosecution was reasonable.
Moore was charged for his alleged role in a kickback scheme concerning Postal Service contracts for optical mail-scanning equipment. (Earlier, Moore had publicly criticized the postal agency for its intent to buy single-line scanners. Moore's company sold multi-line scanners.)
In the criminal case, in Washington's federal trial court, a judge acquitted Moore six weeks into a bench trial in 1989, saying that prosecutors hadn't shown sufficient evidence that Moore played any part in the kickback scheme. Prosecutors had secured several guilty pleas in the wider case. Still, Pohl said, there was no evidence linking Moore and his company to the scheme.
In 2011, D.C. Circuit Judge Karen LeCraft Henderson, writing in an opinion that favored Moore, expressed "dismay over the herculean effort the plaintiff has had to expend simply to get his day in court."
Henderson said then that it's taken 25 years, a criminal trial, eleven appellate judges and the U.S. Supreme Court to get the point of a jury trial.
"To say that this has not been the government's finest hour is a colossal, and lamentable, understatement," Henderson wrote.
In the ruling this week, the D.C. Circuit majority—judges Judith Rogers and David Tatel—said the government “is free to once again petition for certiorari and ask the Supreme Court if it wishes to end this saga.” The high court, so far, has kept Moore’s case alive.
Judge Brett Kavanaugh wrote in dissent, saying that the First Amendment law was unsettled at the time of the alleged retaliation and that, therefore, the Postal Inspectors should receive immunity.