Hartman v. Moore
Encyclopedia
Hartman v. Moore, 547 U.S. 250
(2006), is a decision by the Supreme Court of the United States
involving the pleading standard for retaliatory prosecution claims against government officials. Following a successful lobbying
attempt by the CEO
of a manufacturing company against competing devices that the United States Postal Service
supported, the CEO found himself the target of an investigation by U.S. postal inspectors and a criminal prosecution, which was dismissed for lack of evidence. The CEO then filed suit against the inspectors and other government officials for seeking to prosecute him in retaliation for exercising his First Amendment
rights to criticize postal policy. The Court ruled, 5-2, that in order to prove that the prosecution was caused
by a retaliatory motive, the plaintiff bringing such a claim must allege
and prove that the criminal charges were brought without probable cause
.
of Recognition Equipment Inc. (REI), which manufactured a multiline optical character reader
for interpreting multiple lines of text. REI initially received some $50 million from the United States Postal Service
to develop this technology for reading and sorting mail, but the U.S. Postmaster General and other postal officials were urging mail senders to use nine-digit zip code
s (Zip + 4), which would provide enough routing information on one line of text to allow single-line scanning machines to sort mail by reading just that line.
Many Members of Congress
and federal research officers had reservations about the Postal Service's Zip + 4 policy and its intended reliance on single-line readers, in part because of the foreign sources of the equipment. Moore built on this opposition by lobbying
Congress, testifying before congressional committees, and supporting a "Buy American" rider to the Postal Service's 1985 appropriations bill. Moore alleged that he and REI had received requests from the Postmaster General to be quiet, yet his company proceeded to support its agenda and hired a public relations
firm recommended by a Postal Service official.
. The first looked into the purported payment of kickbacks by the PR firm to the official who recommended its services, and the second sought to document REI's possibly improper role in the search for a new Postmaster General.
Notwithstanding very limited evidence linking Moore and REI to any wrongdoing, an Assistant United States Attorney decided to bring criminal charges against them, and in 1988 the grand jury
indicted Moore, REI, and REI's vice president. At the close of the Government's case, after six weeks of trial, however, the District Court concluded that there was a "complete lack of direct evidence" connecting the defendants to any of the criminal wrongdoing alleged, and it granted the REI defendants' motion for judgment of acquittal.
for civil liability under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), against the prosecutor
and five postal inspectors. His complaint
raised five causes of action, including the claim that the prosecutor and the inspectors had engineered his criminal prosecution in retaliation for criticism of the Postal Service, thus violating the First Amendment
. Moore argued that the postal inspectors launched a criminal investigation against him well before any suspicion of the two schemes actually arose, that the inspectors targeted him for his lobbying activities, and that they pressured the United States Attorney's Office to have him indicted. He also sought recovery from the federal government of the United States
under the Federal Tort Claims Act
(FTCA). The District Court dismissed the claims against the Assistant United States Attorney in accordance with the absolute immunity for prosecutorial judgment, and rejected an abuse of process
claim against the inspectors.
The remaining claims were transferred to the D.C. District Court
, where Moore's suit was dismissed in its entirety, only to have the D.C. Circuit Court of Appeals
reinstate the retaliatory prosecution claim. The District Court then permitted limited discovery
on that matter regarding the inspectors, but again dismissed the remaining charges against the United States and the prosecutor. Although Moore succeeded in having the District of Columbia Circuit reinstate his FTCA claim against the United States, the dismissal of his claims against the prosecutor was affirmed.
With the remainder of the case back in District Court, the inspectors moved for summary judgment
, urging that because the underlying criminal charges were supported by probable cause
they were entitled to qualified immunity
from a retaliatory-prosecution suit. The District Court denied the motion, and the Court of Appeals affirmed.
The Courts of Appeals had divided on the issue of requiring evidence of a lack of probable cause in 42 U.S.C. § 1983 and Bivens retaliatory-prosecution suits. Some Circuits burdened plaintiffs with the obligation to show its absence, Others, including the District of Columbia Circuit, imposed no such requirement. The U.S. Supreme Court granted certiorari
to resolve the Circuit split.
delivered the Court's ruling that the plaintiff in a Bivens action for retaliatory prosecution must allege and prove the lack of probable cause
for pressing the underlying criminal charges. Justice Ruth Bader Ginsburg
filed a dissent
, which was joined by Justice Stephen Breyer
.
Two justices did not participate in the case. Justice Samuel Alito
was confirmed to the Court on January 31, 2006, twenty-one days after it heard oral argument
. Chief Justice John Roberts
was recused
from the case because as a judge on the D.C. Circuit Court of Appeals, he had participated in that court's January 31, 2005 decision to deny the inspectors' motion for rehearing en banc.
.
The inspector
defendants had first argued that the "objective" burden of proving lack of probable cause was needed to filter out frivolous claims
. However, the Court noted that in the past twenty-five years, fewer than two dozen actions for retaliatory prosecution had been before the Courts of Appeals, and there was no sign that they were brought disporportionately in the Circuits that did not require the absence of probable cause to be established.
The defendants also urged that the traditional common law tort
of malicious prosecution
should be instructive, as that cause of action required a plaintiff, following acquittal, to show that the criminal action was begun without probable cause for charging the crime in the first place. However, the Court considered common law tort elements to be more "a source of inspired examples than of prefabricated components of Bivens torts."
The Court believed that imposing that burden on plaintiffs was instead best justified by the need to establish causation, "from animus to injury, with details specific to retaliatory-prosecution cases." Although causal connection is required in any retaliation action, the Court considered that retaliatory prosecution claims presented an additional difficulty.
The ordinary claim is one in which the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action, as in the paradigmatic case of a public employee being fired for criticizing the government. Those cases require "but-for" causation
, meaning that the adverse action would not have been taken but for the retaliatory motive of the official. Evidence of the animus and the challenged action has been taken as sufficient for a circumstantial demonstration that the one caused the other.
The Court believed retaliatory prosecution claims differed from such ordinary retaliation claims in two key respects. First, when the claimed retaliation is the bringing of criminal charge, there will always be evidence showing whether there was or was not probable cause for the underlying charge. Demonstrating that there was no probable cause will tend to show that retaliation was the but-for cause for instigating the prosecution, while conversely establishing the existence of probable cause will suggest that prosecution would have occurred regardless. The Court did not conclude that this alone meant that the plaintiff should be required to plead and prove no probable cause, but it did mean that any case for retaliatory prosecution would likely litigate the issue.
Second, the causal relationship will be much more complex than in ordinary retaliation cases, because prosecutorial immunity bars the plaintiff from suing the official who directly caused the injury of a retaliatory prosecution. The defendant will instead be an official such as the postal inspectors, who may have influenced the prosecutorial decision but did not make it. The Court viewed this less as a cause of action
for retaliatory prosecution, but rather for "successful retaliatory inducement to prosecute." The required causal connection is therefore between the retaliatory motive of one person and the action of another.
The problem is then that evidence of an inspector's motive does not necessarily show that the inspector induced a prosecution that would not have been otherwise pressed. There is furthermore a long-standing presumption that a prosecutor has legitimate grounds for the actions he takes, supported by the Court's position that "judicial intrusion into executive discretion
of such high order should be minimal." Because some kind of allegation is then needed to bridge the gap between the motive of the nonprosecuting official and the prosecutor's action, and to address the presumption of legitimate prosecutorial decisionmaking, "retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor's decision to go forward are reasonable grounds to suspend the presumption of regularity behind the charging decision."
The Court observed that it could have left the causal gap to be filled by "such pleading and proof as the circumstances allow." The disclosure of a prosecutor's own retaliatory motive would be significant, as would evidence that he merely rubber stamped the work of his investigators. However, the Court believed that those examples "are likely to be rare and consequently poor guides in structuring a cause of action." Furthermore, because the issue is so likely to be raised in such litigation at some point, "a requirement to plead and prove its absence will usually be cost free by any incremental reckoning."
, which was joined by Justice Stephen Breyer
. She believed that the lower court's ruling had struck a proper balance that was consistent with Court precedent.
Ginsburg began by noting that the Court of Appeals had determined that "the evidence of retaliatory motive [came] close to the proverbial smoking gun
." The record also indicated that the postal inspectors engaged in "unusual prodding," strenuously urging a reluctant U.S. Attorney's Office to press charges against Moore. Following Circuit precedent, the Court of Appeals held that "once a plaintiff shows [conduct sheltered by the First Amendment
] to have been a motivating factor in the decision to press charges," the burden shifts to the defending officials to show that the case would have been pursued anyway.
Because the case was at this stage directed only against the instigating postal inspectors, Ginsburg did not believe that the plaintiff—"the alleged victim"—should bear the burden of pleading and proving the lack of probable cause
for the prosecution. She would have instead applied the same burden that the Court of Appeals did, upon the postal inspectors to show that the U.S. Attorney's Office would have pursued the case even absent "retaliatory motive and importuning."
Ginsburg believed that the majority's burden of proof allocation would only check "entirely baseless" prosecutions. "So long as the retaliators present evidence barely sufficient to establish probable cause and persuade a prosecutor to act on their thin information, they could accomplish their mission cost free. Their victim, on the other hand, would incur not only the costs entailed in mounting a defense, he likely would sustain a reputational loss as well, and neither loss would be compensable under federal law." Ginsburg would have preferred the D.C. Circuit's "more speech-protective formulation," in which recovery remains possible "in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the [investigation and ensuing] prosecution would not have occurred but for the [defending] officials' retaliatory animus."
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(2006), is a decision by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
involving the pleading standard for retaliatory prosecution claims against government officials. Following a successful lobbying
Lobbying
Lobbying is the act of attempting to influence decisions made by officials in the government, most often legislators or members of regulatory agencies. Lobbying is done by various people or groups, from private-sector individuals or corporations, fellow legislators or government officials, or...
attempt by the CEO
Chief executive officer
A chief executive officer , managing director , Executive Director for non-profit organizations, or chief executive is the highest-ranking corporate officer or administrator in charge of total management of an organization...
of a manufacturing company against competing devices that the United States Postal Service
United States Postal Service
The United States Postal Service is an independent agency of the United States government responsible for providing postal service in the United States...
supported, the CEO found himself the target of an investigation by U.S. postal inspectors and a criminal prosecution, which was dismissed for lack of evidence. The CEO then filed suit against the inspectors and other government officials for seeking to prosecute him in retaliation for exercising his First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
rights to criticize postal policy. The Court ruled, 5-2, that in order to prove that the prosecution was caused
Causation (law)
Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...
by a retaliatory motive, the plaintiff bringing such a claim must allege
Allegation
An allegation is a claim of a fact by a party in a pleading, which the party claims to be able to prove. Allegations remain assertions without proof, until they can be proved....
and prove that the criminal charges were brought without probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
.
Campaign against U.S.P.S. policies
In the 1980s, William G. Moore, Jr. was the chief executive officerChief executive officer
A chief executive officer , managing director , Executive Director for non-profit organizations, or chief executive is the highest-ranking corporate officer or administrator in charge of total management of an organization...
of Recognition Equipment Inc. (REI), which manufactured a multiline optical character reader
Multiline Optical Character Reader
A Multiline Optical Character Reader, or MLOCR, is a type of mail sorting machine that uses Optical Character Recognition technology to determine how to route mail through the postal system....
for interpreting multiple lines of text. REI initially received some $50 million from the United States Postal Service
United States Postal Service
The United States Postal Service is an independent agency of the United States government responsible for providing postal service in the United States...
to develop this technology for reading and sorting mail, but the U.S. Postmaster General and other postal officials were urging mail senders to use nine-digit zip code
ZIP Code
ZIP codes are a system of postal codes used by the United States Postal Service since 1963. The term ZIP, an acronym for Zone Improvement Plan, is properly written in capital letters and was chosen to suggest that the mail travels more efficiently, and therefore more quickly, when senders use the...
s (Zip + 4), which would provide enough routing information on one line of text to allow single-line scanning machines to sort mail by reading just that line.
Many Members of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
and federal research officers had reservations about the Postal Service's Zip + 4 policy and its intended reliance on single-line readers, in part because of the foreign sources of the equipment. Moore built on this opposition by lobbying
Lobbying
Lobbying is the act of attempting to influence decisions made by officials in the government, most often legislators or members of regulatory agencies. Lobbying is done by various people or groups, from private-sector individuals or corporations, fellow legislators or government officials, or...
Congress, testifying before congressional committees, and supporting a "Buy American" rider to the Postal Service's 1985 appropriations bill. Moore alleged that he and REI had received requests from the Postmaster General to be quiet, yet his company proceeded to support its agenda and hired a public relations
Public relations
Public relations is the actions of a corporation, store, government, individual, etc., in promoting goodwill between itself and the public, the community, employees, customers, etc....
firm recommended by a Postal Service official.
Investigation and prosecution
The campaign succeeded, and in July 1985 the Postal Service embraced multiline technology. However, the Postal Service's ensuing order of multiline equipment (valued between $250–400 million) went to a competing firm. Moore and REI were also soon the target of two investigations by postal inspectorsUnited States Postal Inspection Service
The United States Postal Inspection Service is the law enforcement arm of the United States Postal Service. Its jurisdiction is defined as "crimes that may adversely affect or fraudulently use the U.S...
. The first looked into the purported payment of kickbacks by the PR firm to the official who recommended its services, and the second sought to document REI's possibly improper role in the search for a new Postmaster General.
Notwithstanding very limited evidence linking Moore and REI to any wrongdoing, an Assistant United States Attorney decided to bring criminal charges against them, and in 1988 the grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
indicted Moore, REI, and REI's vice president. At the close of the Government's case, after six weeks of trial, however, the District Court concluded that there was a "complete lack of direct evidence" connecting the defendants to any of the criminal wrongdoing alleged, and it granted the REI defendants' motion for judgment of acquittal.
Moore's lawsuit
Moore then brought an action in the United States District Court for the Northern District of TexasUnited States District Court for the Northern District of Texas
The United States District Court for the Northern District of Texas is a United States district court. Its first judge, Andrew Phelps McCormick, was appointed to the court on April 10, 1879. The court convenes in Dallas, Texas with divisions in Fort Worth, Amarillo, Abilene, Lubbock, San Angelo...
for civil liability under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), against the prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
and five postal inspectors. His complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...
raised five causes of action, including the claim that the prosecutor and the inspectors had engineered his criminal prosecution in retaliation for criticism of the Postal Service, thus violating the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
. Moore argued that the postal inspectors launched a criminal investigation against him well before any suspicion of the two schemes actually arose, that the inspectors targeted him for his lobbying activities, and that they pressured the United States Attorney's Office to have him indicted. He also sought recovery from the federal government of the United States
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
under the Federal Tort Claims Act
Federal Tort Claims Act
The Federal Tort Claims Act or "FTCA", , is a statute enacted by the United States Congress in 1948. "Federal Tort Claims Act" was also previously the official short title passed by the Seventy-ninth Congress on August 2, 1946 as Title IV of the Legislative Reorganization Act, 60 Stat...
(FTCA). The District Court dismissed the claims against the Assistant United States Attorney in accordance with the absolute immunity for prosecutorial judgment, and rejected an abuse of process
Abuse of process
Abuse of process is a cause of action in tort arising from one party making a malicious and deliberate misuse or perversion of regularly issued court process not justified by the underlying legal action.It is a common law intentional tort...
claim against the inspectors.
The remaining claims were transferred to the D.C. District Court
United States District Court for the District of Columbia
The United States District Court for the District of Columbia is a federal district court. Appeals from the District are taken to the United States Court of Appeals for the District of Columbia Circuit The United States District Court for the District of Columbia (in case citations, D.D.C.) is a...
, where Moore's suit was dismissed in its entirety, only to have the D.C. Circuit Court of Appeals
United States Court of Appeals for the District of Columbia Circuit
The United States Court of Appeals for the District of Columbia Circuit known informally as the D.C. Circuit, is the federal appellate court for the U.S. District Court for the District of Columbia. Appeals from the D.C. Circuit, as with all the U.S. Courts of Appeals, are heard on a...
reinstate the retaliatory prosecution claim. The District Court then permitted limited discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
on that matter regarding the inspectors, but again dismissed the remaining charges against the United States and the prosecutor. Although Moore succeeded in having the District of Columbia Circuit reinstate his FTCA claim against the United States, the dismissal of his claims against the prosecutor was affirmed.
With the remainder of the case back in District Court, the inspectors moved for summary judgment
Summary judgment
In law, a summary judgment is a determination made by a court without a full trial. Such a judgment may be issued as to the merits of an entire case, or of specific issues in that case....
, urging that because the underlying criminal charges were supported by probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
they were entitled to qualified immunity
Qualified immunity
Qualified immunity is a doctrine in U.S. federal law that arises in cases brought against state officials under 42 U.S.C Section 1983 and against federal officials under Bivens v. Six Unknown Named Agents, 403 U.S. 388 . Qualified immunity shields government officials from liability for the...
from a retaliatory-prosecution suit. The District Court denied the motion, and the Court of Appeals affirmed.
The Courts of Appeals had divided on the issue of requiring evidence of a lack of probable cause in 42 U.S.C. § 1983 and Bivens retaliatory-prosecution suits. Some Circuits burdened plaintiffs with the obligation to show its absence, Others, including the District of Columbia Circuit, imposed no such requirement. The U.S. Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
to resolve the Circuit split.
The court's decision
Writing for a five justice majority, Justice David SouterDavid Souter
David Hackett Souter is a former Associate Justice of the Supreme Court of the United States. He served from 1990 until his retirement on June 29, 2009. Appointed by President George H. W. Bush to fill the seat vacated by William J...
delivered the Court's ruling that the plaintiff in a Bivens action for retaliatory prosecution must allege and prove the lack of probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
for pressing the underlying criminal charges. Justice Ruth Bader Ginsburg
Ruth Bader Ginsburg
Ruth Joan Bader Ginsburg is an Associate Justice of the Supreme Court of the United States. Ginsburg was appointed by President Bill Clinton and took the oath of office on August 10, 1993. She is the second female justice and the first Jewish female justice.She is generally viewed as belonging to...
filed a dissent
Dissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, which was joined by Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
.
Two justices did not participate in the case. Justice Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
was confirmed to the Court on January 31, 2006, twenty-one days after it heard oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
. Chief Justice John Roberts
John Roberts
John Glover Roberts, Jr. is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist...
was recused
Recusal
Judicial disqualification, also referred to as recusal, refers to the act of abstaining from participation in an official action such as a legal proceeding due to a conflict of interest of the presiding court official or administrative officer. Applicable statutes or canons of ethics may provide...
from the case because as a judge on the D.C. Circuit Court of Appeals, he had participated in that court's January 31, 2005 decision to deny the inspectors' motion for rehearing en banc.
Souter's majority opinion
Though the Court adopted the position of the inspector defendants that the absence of probable cause should be an essential element of this claim, it disagreed with their reasoning, and instead based the need for that element upon the requirement to prove causationCausation (law)
Causation is the "causal relationship between conduct and result". That is to say that causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is...
.
The inspector
United States Postal Inspection Service
The United States Postal Inspection Service is the law enforcement arm of the United States Postal Service. Its jurisdiction is defined as "crimes that may adversely affect or fraudulently use the U.S...
defendants had first argued that the "objective" burden of proving lack of probable cause was needed to filter out frivolous claims
Frivolous litigation
In law, frivolous litigation is the practice of starting or carrying on law suits that, due to their lack of legal merit, have little to no chance of being won. The term does not include cases that may be lost due to other matters not related to legal merit...
. However, the Court noted that in the past twenty-five years, fewer than two dozen actions for retaliatory prosecution had been before the Courts of Appeals, and there was no sign that they were brought disporportionately in the Circuits that did not require the absence of probable cause to be established.
The defendants also urged that the traditional common law tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
of malicious prosecution
Malicious prosecution
Malicious prosecution is a common law intentional tort, while like the tort of abuse of process, its elements include intentionally instituting and pursuing a legal action that is brought without probable cause and dismissed in favor of the victim of the malicious prosecution...
should be instructive, as that cause of action required a plaintiff, following acquittal, to show that the criminal action was begun without probable cause for charging the crime in the first place. However, the Court considered common law tort elements to be more "a source of inspired examples than of prefabricated components of Bivens torts."
The Court believed that imposing that burden on plaintiffs was instead best justified by the need to establish causation, "from animus to injury, with details specific to retaliatory-prosecution cases." Although causal connection is required in any retaliation action, the Court considered that retaliatory prosecution claims presented an additional difficulty.
The ordinary claim is one in which the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action, as in the paradigmatic case of a public employee being fired for criticizing the government. Those cases require "but-for" causation
Proximate cause
In the law, a proximate cause is an event sufficiently related to a legally recognizable injury to be held the cause of that injury. There are two types of causation in the law, cause-in-fact and proximate cause. Cause-in-fact is determined by the "but-for" test: but for the action, the result...
, meaning that the adverse action would not have been taken but for the retaliatory motive of the official. Evidence of the animus and the challenged action has been taken as sufficient for a circumstantial demonstration that the one caused the other.
The Court believed retaliatory prosecution claims differed from such ordinary retaliation claims in two key respects. First, when the claimed retaliation is the bringing of criminal charge, there will always be evidence showing whether there was or was not probable cause for the underlying charge. Demonstrating that there was no probable cause will tend to show that retaliation was the but-for cause for instigating the prosecution, while conversely establishing the existence of probable cause will suggest that prosecution would have occurred regardless. The Court did not conclude that this alone meant that the plaintiff should be required to plead and prove no probable cause, but it did mean that any case for retaliatory prosecution would likely litigate the issue.
Second, the causal relationship will be much more complex than in ordinary retaliation cases, because prosecutorial immunity bars the plaintiff from suing the official who directly caused the injury of a retaliatory prosecution. The defendant will instead be an official such as the postal inspectors, who may have influenced the prosecutorial decision but did not make it. The Court viewed this less as a cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
for retaliatory prosecution, but rather for "successful retaliatory inducement to prosecute." The required causal connection is therefore between the retaliatory motive of one person and the action of another.
The problem is then that evidence of an inspector's motive does not necessarily show that the inspector induced a prosecution that would not have been otherwise pressed. There is furthermore a long-standing presumption that a prosecutor has legitimate grounds for the actions he takes, supported by the Court's position that "judicial intrusion into executive discretion
Discretion
Discretion is a noun in the English language with several meanings revolving around the judgment of the person exercising the characteristic.-Meanings:*"The Art of suiting action to particular circumstances"...
of such high order should be minimal." Because some kind of allegation is then needed to bridge the gap between the motive of the nonprosecuting official and the prosecutor's action, and to address the presumption of legitimate prosecutorial decisionmaking, "retaliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor's decision to go forward are reasonable grounds to suspend the presumption of regularity behind the charging decision."
The Court observed that it could have left the causal gap to be filled by "such pleading and proof as the circumstances allow." The disclosure of a prosecutor's own retaliatory motive would be significant, as would evidence that he merely rubber stamped the work of his investigators. However, the Court believed that those examples "are likely to be rare and consequently poor guides in structuring a cause of action." Furthermore, because the issue is so likely to be raised in such litigation at some point, "a requirement to plead and prove its absence will usually be cost free by any incremental reckoning."
Ginsburg's dissent
Justice Ginsburg filed a dissenting opinionDissenting opinion
A dissenting opinion is an opinion in a legal case written by one or more judges expressing disagreement with the majority opinion of the court which gives rise to its judgment....
, which was joined by Justice Stephen Breyer
Stephen Breyer
Stephen Gerald Breyer is an Associate Justice of the U.S. Supreme Court. Appointed by President Bill Clinton in 1994, and known for his pragmatic approach to constitutional law, Breyer is generally associated with the more liberal side of the Court....
. She believed that the lower court's ruling had struck a proper balance that was consistent with Court precedent.
Ginsburg began by noting that the Court of Appeals had determined that "the evidence of retaliatory motive [came] close to the proverbial smoking gun
Smoking gun
The term "smoking gun" was originally, and is still primarily, a reference to an object or fact that serves as conclusive evidence of a crime or similar act. In addition to this, its meaning has evolved in uses completely unrelated to criminal activity: for example, scientific evidence that is...
." The record also indicated that the postal inspectors engaged in "unusual prodding," strenuously urging a reluctant U.S. Attorney's Office to press charges against Moore. Following Circuit precedent, the Court of Appeals held that "once a plaintiff shows [conduct sheltered by the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
] to have been a motivating factor in the decision to press charges," the burden shifts to the defending officials to show that the case would have been pursued anyway.
Because the case was at this stage directed only against the instigating postal inspectors, Ginsburg did not believe that the plaintiff—"the alleged victim"—should bear the burden of pleading and proving the lack of probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
for the prosecution. She would have instead applied the same burden that the Court of Appeals did, upon the postal inspectors to show that the U.S. Attorney's Office would have pursued the case even absent "retaliatory motive and importuning."
Ginsburg believed that the majority's burden of proof allocation would only check "entirely baseless" prosecutions. "So long as the retaliators present evidence barely sufficient to establish probable cause and persuade a prosecutor to act on their thin information, they could accomplish their mission cost free. Their victim, on the other hand, would incur not only the costs entailed in mounting a defense, he likely would sustain a reputational loss as well, and neither loss would be compensable under federal law." Ginsburg would have preferred the D.C. Circuit's "more speech-protective formulation," in which recovery remains possible "in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the [investigation and ensuing] prosecution would not have occurred but for the [defending] officials' retaliatory animus."