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.
Kickback scheming alleged
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.
Mike Scarcella writes for The Blog of Legal Times, a Daily Report affiliate.
