A group of former U.S. Postal Service inspectors who are defendants in a businessman's long-running retaliation suit in Washington have turned to outside counsel to press their challenge in the U.S. Supreme Court as a trial date inches closer.
The Justice Department, which had fought for the inspectors in earlier litigation in the Supreme Court, did not file the latest petition, which asks the justices to review a ruling in the U.S. Court of Appeals for the D.C. Circuit that kept alive businessman William Moore's allegations.
The solicitor general's office has final say on any petitions brought on behalf of federal agencies and officials. That the Justice Department did not pursue the latest legal fight in the high court could mean the government saw no merit in taking the case any higher.
Jeffrey Lamken of Washington's MoloLamken represents the inspectors in the latest Supreme Court action. Lamken couldn't be reached for comment today about the petition, which was filed last week. The document asks the high court to resolve a divide among appellate court over the scope of qualified immunity in cases that alleged retaliatory prosecution.
Paul Werner, a Justice Department lawyer involved in the case, referred a question about Lamken's involvement to a DOJ spokeswoman. The department declined to comment about the reason the solicitor general is not participating in the latest appeal. The certiorari petition is the fourth that the inspectors have filed since the litigation began in Washington federal district court in 1993.
Moore sued the postal inspectors following a criminal case alleging his participation in a bribery conspiracy fell apart. Moore, formerly the chief executive of a scanning technology company, contends in the civil suit that the government retaliated against him for his criticism of Postal Service mail-sorting policy. The case has dragged on for years over qualified immunity issues. (In 2011, Judge Karen LeCraft Henderson of the D.C. Circuit expressed “dismay over the herculean effort the plaintiff has had to expend simply to get his day in court.)
Moore's attorneys, including Jones Day partners Christian Vergonis, Henry Asbill and Paul Pohl, said in court papers filed Friday that the inspectors are "recycling" arguments whose resolution will only further delay the case.
The plaintiff’s attorneys want U.S. District Judge Amy Berman Jackson to keep firm on the October 15 trial date she recently set. Moore's lawyers in their papers said described the inspectors' new counsel as a "sudden, unexplained decision."
"The cert petition lacks merit and is simply a last-ditch effort by the Postal Inspectors to delay a trial on the merits," Vergonis wrote in an e-mail. "Tellingly, the petition was filed by private counsel, which suggests that the Justice Department, representing the Inspectors in this case, refused to support their position before the Supreme Court."
Moore's attorneys said the Supreme Court isn’t likely to review the inspectors' petition until, at the earliest, the September 30 conference. The high court, Moore's lawyers said, could announce their decision a week or two before the scheduled start of trial.
Jackson has not ruled on the government's request to stay the trial court proceedings pending review of the petition filed in the Supreme Court.
The Supreme Court could ultimately force the government to explain whether it supports or rejects the petition the inspectors filed. Moore's attorneys said the high court could ask for the Solicitor General's views on the case, given the federal government interests that are at stake.