Over the objection of the U.S. Justice Department, a federal trial judge in Washington has refused to put on hold a long-running dispute in which a businessman claims the government prosecuted him in retaliation for public remarks about the U.S. Postal Service.
The businessman, William Moore, filed suit in 1991 following the government's unsuccessful prosecution of him on charges he participated in a fraud conspiracy regarding Postal Service contracts for mail-scanning equipment. Moore's civil complaint alleges, among other things, a First Amendment retaliatory prosecution claim.
Moore's case has dragged on for years in part over a spat about whether a group of Postal Service inspectors are entitled to qualified immunity. The U.S. Court of Appeals for the D.C. Circuit recently said—again—that the defendants have no such shield. The court ruled 2-1 in favor of Moore in January.
Last month, DOJ lawyers asked U.S. District Judge Amy Berman Jackson to stay proceedings in the case to give time for the Solicitor General's office to consider appellate options. At a hearing Monday in Washington, Jackson rejected the government's request. The case had been on hold since June 2012.
If the Solicitor General's office doesn't pursue an appeal to the Supreme Court, DOJ attorneys said in court papers, the Postal Inspectors "intend to pursue it through private counsel."
DOJ trial attorneys Andrea McCarthy and Richard Montague of the Civil Division's torts branch said "because immunity once lost cannot be retrieved, the inspectors ask this court to extend the stay of proceedings pending exhaustion of the appellate review process."
Moore's attorneys at Jones Day, including Paul "Mickey" Pohl in Pittsburgh and Christian Vergonis in Washington, had urged Jackson not to postpone proceedings in the case any longer.
Any need to "free" the inspectors from the burdens of litigation, Moore's attorneys said, "has long since passed."
"The Inspectors have already participated in twenty-two years of motions practice, appeals, and, as they recently noted, 'extensive discovery,'" including depositions, Moore's lawyers said in court papers.
Moore's "due process right to get to trial and the public interest in the prompt adjudication of justice far outweigh the Inspector's interest in pursuing yet more appeals on qualified immunity," Vergonis and Pohl wrote in court papers.
In 2011, D.C. Circuit Judge Karen LeCraft Henderson expressed concern about the length of time it's taken Moore to reach a trial on the merits of his claim.
"It has taken twenty-five years, a criminal trial, eleven appellate judges as well as all participating members of the United States Supreme Court—not one of whom has rejected his claim as a matter of law—to get to the point that a jury will finally hear and decide if government officials engaged in pay-back because the plaintiff sought to do business with the government," Henderson wrote. "To say that this has not been the government’s finest hour is a colossal, and lamentable, understatement."
Jackson plans to meet in court for a status hearing in April. The judge set trial for October 15.