Moore v. Hartman | Cases | Westlaw

*1 These two actions against the United States arise from a major criminal investigation and subsequent prosecution carried out by the office of the United States Attorney for the District of Columbia. The plaintiffs allege that the government and its agents intentionally misled a grand jury, concealed exculpatory evidence, intimidated witnesses, and falsified statements in an attempt to convict plaintiff William Moore. The United States has filed motions to dismiss in both cases.

In ruling on a motion to dismiss, the Court must treat the allegations of the complaint as true. Shear v. National Rifle Ass'n, 606 F.2d 1251, 1253 (D.C.Cir.1979). The facts as set forth in the complaints are as follows: in early 1985, the U.S. Postal Inspection Service began an investigation into possible illegal payments from John Gnau, a consultant, to Peter Voss, then a member of the United States Postal Service Board of Governors. Assistant United States Attorney Joseph Valder eventually came to lead the investigation. Voss, Gnau, and another member of Gnau's consulting firm pled guilty to criminal charges, while other participants in the conspiracy agreed to cooperate in exchange for immunity from prosecution. Compl. (Civil No. 93–0324) at 6–7.

Plaintiff William Moore was at this time chief executive officer of Recognition Equipment, Inc. (“REI”), a corporation that was seeking to obtain a contract with the Postal Service for the sale of multiple-line optical character recognition (“MLOCR”) equipment. At the suggestion of Governor Voss, REI had retained Gnau's consulting firm in order to improve REI's chances of obtaining the contract with the Postal Service. Id. As the investigation of Voss and Gnau progressed, Valder and the Postal Inspectors allegedly tried to find a way to link Moore to the conspiracy. However, the evidence clearly demonstrated that Moore knew nothing of the conspiracy. In fact, several conspirators told Valder and the Inspectors that they had actively sought to conceal the conspiracy from Moore. Id. at 7.

Nevertheless, Valder and the Inspectors allegedly “engaged in unusual, unlawful and unconstitutional investigative techniques to intimidate and coerce witnesses to try to implicate Moore and to control the flow of information to the Grand Jury in order to mislead the Grand Jury to return an indictment when none was warranted.” Id. at 8. Valder and the Inspectors are alleged to have presented incomplete witness statements to the grand jury, even though the witnesses themselves had said that the statements were inaccurate. Valder and the Inspectors are alleged to have intimidated witnesses, going so far as to tear up the immunity letter of one witness in his presence while threatening to prosecute his son. Moore also claims that the defendants failed to provide him with exculpatory evidence that should have been disclosed under Brady v. Maryland, 373 U.S. 83 (1963), evidence including the report of a lie detector test and a witness statement containing exculpatory statements.

*2 On October 6, 1988, a federal grand jury in the District of Columbia issued an indictment naming Moore, REI, and Robert Reedy, an employee of REI. The indictment charged the defendants with one count of conspiracy to defraud the United States, 18 U.S.C. § 371; one count of theft, 18 U.S.C. §§ 2, 1707; one count of receiving stolen property, D.C.Code Ann. §§ 22–3832(a), (c)(1), 22–105; two counts of mail fraud, 18 U.S.C. §§ 2, 1341; and two counts of wire fraud, 18 U.S.C. §§ 2, 1343. The substance of the charges was that the defendants had illegally conspired to influence the Postal Service's decision whether to award a contract to REI. According to the indictment, REI, Moore, and Reedy paid Gnau for lobbying services, and Gnau in turn paid Governor Voss to take illegal actions on REI's behalf. The indictment also alleged that the defendants had hatched a scheme to replace then-Postmaster General Paul Carlin with a person more sympathetic to REI's interests.

The government presented its case during a six-week bench trial before the Honorable George Revercomb of the United States District Court for the District of Columbia. On November 20, 1989, following the close of the government's evidence, Judge Revercomb granted the defendants' motion for judgment of acquittal on all charges. See United States v. Recognition Equipment, Inc., 725 F.Supp. 587 (D.D.C.1989). In his opinion, Judge Revercomb specifically noted that “no evidence has been presented that REI, Moore, or Reedy knew of this criminal scheme.” Id. at 590. Nevertheless, as a result of his indictment and prosecution, Moore maintains that his career was seriously compromised and his finances decimated. He was twice fingerprinted and processed by law enforcement officers and briefly jailed. He and his wife allege that they suffered humiliation, physical and mental suffering, and anguish, which required them to undergo medical treatment.

On November 19, 1991, Moore and his wife, Blanche K. Moore, filed a complaint in the United States District Court for the Northern District of Texas against Valder and the seven Postal Inspectors who investigated the case against Moore. The complaint sought to recover for various constitutional violations under a Bivens theory of liability,¹ as well as for the state common-law torts of slander, defamation, invasion of privacy, false arrest, abuse of process, and malicious prosecution. In response to the assertion of state law claims against Valder and the Inspectors, the Attorney General's designee certified, on February 18, 1992, that all of the claims against the individually named government defendants arose from actions carried out within the scope of their employment. The Texas federal district court then ordered that the United States was to be substituted as the defendant with respect to the state law claims pursuant to 28 U.S.C. § 2679(d)(1). The state law claims against the individual defendants were dismissed with prejudice.

*3 On September 21, 1992, the Texas federal district court issued an order ruling on the defendants' motion to dismiss. The order dismissed all constitutional claims brought by Blanche Moore, all of Moore's constitutional claims against Valder, and several of Moore's constitutional claims against the Inspectors. The Texas court refused, however, to grant the defendants' motion to dismiss with respect to Moore's malicious prosecution claim against the Inspectors, as well as the constitutional claim alleging violation of his First Amendment rights. Moreover, the court also concluded that it lacked personal jurisdiction over the Inspectors and transferred the case rather than dismiss the remaining claims against them. On October 5, 1992, the official record was transferred to this court and docketed as Civil Action No. 92–2288. The defendants moved to dismiss for lack of jurisdiction, to dismiss the Inspectors as defendants, and to vacate the portion of the Texas district court's ruling that permitted claims to go forward against the Inspectors. A motion for entry of default judgment against the United States was also filed.

On October 14, 1992, the plaintiffs filed a second lawsuit in the United States District Court for the Northern District of Texas. This second complaint named only the United States as a defendant, and differed from the first primarily in that (1) it alleged exhaustion of the administrative remedy procedure which is a prerequisite to filing suit under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, and (2) it alleged no cause of action for defamation or for invasion of privacy. On February 16, 1993, the official record was formally transferred to this Court, where it was docketed as Civil Action No. 93–0324. The United States has filed a motion to dismiss for lack of subject matter jurisdiction.

In ruling on the defendants' motion to dismiss in Civil No. 92–2288, the Texas federal district court declined to dismiss two claims that Moore had brought against the Inspector defendants in their individual capacities: (1) the malicious prosecution claim, and (2) the claim that the Inspectors had violated Moore's First Amendment rights. The defendants argue that these claims should be dismissed because Moore has failed to allege them with sufficient particularity to satisfy this circuit's heightened pleading standard in Bivens actions.²

The Supreme Court has determined that “bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.” Harlow v. Fitzgerald, 457 U.S. 800, 817–18 (1982). To this end, the Court of Appeals for this Circuit has developed a heightened pleading standard for Bivens claims alleging an unconstitutional motive. A Bivens plaintiff may not merely “allege facts consistent with lawful conduct and append a claim of unconstitutional motive,” because to permit such a lawsuit to proceed would “impos[e] on officials the very costs and burdens of discovery and trial that Harlow intended to spare them.” Siegert v. Gilley, 895 F.2d 797, 801 (D.C.Cir.1990), aff'd on other grounds, 111 S.Ct. 1789 (1991). Instead,

According to Moore, “[t]he Complaint alleges that the prosecution against Moore was initiated for at least two reasons. First, Moore was being punished for his aggressive lobbying of the USPS and important members of Congress in order to persuade the USPS to adopt REI's MLOCR technology.... Second, ... [they] sought to prosecute Moore for suggesting qualified candidates for the position of Postmaster General.” Pls.' Opp'n to Inspectors' Mot. to Dismiss at 17. Moore claims to have offered some six sources of direct evidence to support these allegations: (1) the complaint itself, (2) the indictment in Moore's criminal case, (3) the testimony of Frank Bray at Moore's criminal trial, (4) Judge Revercomb's opinion entering a judgment of acquittal, (5) Moore's own affidavit, and (6) an affidavit executed by William Hittinger, a member of REI's board of directors.

The first five of these sources provide only inferential proof of malice. The complaint, for example, alleges that Moore lobbied Congress and the Postal Service and that he recommended a candidate for the position of Postmaster General. Its strongest allegation of malicious intent, however, is contained in paragraph 16, which alleges that the defendants used unlawful investigative techniques

*5 Nor do the indictment or Judge Revercomb's opinion advance Moore's case. These documents confirm that Moore lobbied Congress and the Postal Service, but they do not provide direct evidence that he was prosecuted because of his lobbying activities. Bray's testimony and Moore's own affidavit go one step further; they show that animosity existed between some REI employees and some employees of the Postal Service. Bray, for example, testified at trial that there was a “stubborn resistance” at the Postal Service to REI's attempts to promote MLOCR technology, and said he worried that Moore's “aggressive lobbying effort ... might alienate the feelings” of some Post Office leaders. Trial Tr. (Ex. E to Appendix to Pls.' Opp'n to Mot. to Dismiss, filed Apr. 14, 1992) at 1718, 1731. According to Moore, the Postal Service had a “personal animus” against him and seemed “determined to exact ... punitive measures directed at me personally.” Aff. of William G. Moore (Ex. B to Appendix to Pls.' Opp'n to Mot. to Dismiss, filed Apr. 14, 1992) at 29–30. Even these statements do not, however, show that this alleged animosity was a motivating factor in the Inspectors' decision to investigate and prosecute Moore. The closest they come is Moore's statement that “I believe that the agents were motivated in large measure by animus towards me and my company born of longstanding conflict between [REI] and various senior managers within the USPS.” Id. at 1. This sweeping claim relies entirely upon Moore's subjective beliefs and refers to no direct or circumstantial evidence of the defendants' intent. This claim therefore cannot serve to meet the required heightened pleading standard for Bivens actions.

Indeed, the only direct evidence of intent that Moore has offered is the Hittinger affidavit. In this affidavit, a member of REI's board of directors describes how he traveled to Washington in 1987 or 1988 in order to testify before a grand jury and had lunch with Valder and two Postal Inspectors on the day of his testimony. During their conversation, “Mr. Valder stated in substance that the merits of the case or whether the persons involved were guilty or not did not concern him. He explained that it was important to him that he win the case because he wanted to get a track record or some notoriety which would help him obtain a good position in private practice.” Aff. of William C. Hittinger (Ex. B to Pls.' Opp'n to Mot. to Dismiss, filed Mar. 5, 1993) at 3. Even this direct evidence, however, cannot save Moore's claims against the Inspectors from dismissal for it provides no evidence of the Inspectors' intent. Nothing in the affidavit suggests that the Inspectors shared Valder's alleged motivations.

Moore has completely failed to offer any direct evidence of malicious intent by the Inspectors. Moore has urged the Court to adopt a less stringent reading of the heightened pleading standard, i.e., a reading set forth in Kimberlin v. Quinlan, 774 F.Supp. 1 (D.D.C.1991), appeal filed, No. 91–5315 (D.C.Cir. Aug. 30, 1991). Kimberlin involved a federal prisoner who alleged that prison officials had placed him in detention to keep him from speaking to the news media about his claims that he had sold marijuana to vice-presidential candidate Dan Quayle. The trial judge in Kimberlin examined Siegert and other cases dealing with the heightened pleading standard and concluded that “Siegert does not appear to have turned on the distinction between direct and circumstantial evidence as understood in the law of evidence, but on the question whether the plaintiff had proffered something other than mere conclusions.” He then held that the Bivens plaintiff did not have to allege direct evidence of intent but could instead survive dismissal with “tangible allegations of concrete facts corroborative of his own subjective version of the events.” Id. at 6. Moore argues that under this standard his case should proceed to discovery, because he has alleged facts which “raise[ ] a legitimate inference that someone was out to ‘get’ Bill Moore.” Pls.' Opp'n to Inspectors' Mot. to Dismiss at 19.

*6 The Court declines to follow Kimberlin. Moore's allegations, by contrast to those in Kimberlin, rely upon questionable logic and create no strong inferences of unconstitutional motive. The chain of inferences Moore has constructed can be summarized as follows: (1) Moore suggested candidates for the office of Postmaster General, (2) he lobbied Congress and the Postal Service to adopt MLOCR technology, (3) his efforts angered some officials at the Postal Service, and (4) Valder and the Inspectors attempted to silence him by pursuing an unwarranted prosecution. Although this scenario is within the realm of possibility, it essentially relies upon a post hoc ergo propter hoc theory of causation—because the lobbying came before the prosecution, the lobbying must have caused the prosecution. Moore is unable to explain why the Inspectors would have cared about a private citizen's criticism of Postal Service procurement procedures. Nor does he reveal why the Inspectors would have preferred that the Postal Service use single-line optical character recognition equipment instead of REI's multiple-line equipment. In Kimberlin, by contrast, the defendants were high-ranking executive branch officials, appointed during Republican administrations, who might naturally have been intensely interested in the outcome of a presidential election. Indeed, Kimberlin showed that the defendants were in close contact with the Quayle campaign, and that their high-level decision to place a single inmate in detention was unprecedented and extraordinary. The court rightly concluded that Kimberlin's allegations were “tangible, detailed, and nonconclusory.” 774 F.Supp. at 8. Moore, however, alleges only that the Postal Service bore him animosity and then asks that an inference be drawn that this animosity caused his prosecution. This link is far too tenuous to satisfy even the standard set forth in Kimberlin.

Finally, Moore objects to this Court's review of the Texas court's order which held that Moore had met his pleading burden on his claims against the Inspectors. That order denied the defendants' motion to dismiss the claims, and declared that “[d]iscovery should therefore proceed on both of these claims.” Mem.Ord. of Sept 21, 1992 at 10–11. The Court must review this earlier order, however, because the heightened pleading standard for Bivens actions in this Circuit is markedly different from the standard in the Fifth Circuit. Compare Martin v. D.C. Metro. Police Dep't, 812 F.2d 1425, 1435 (D.C.Cir.1987) (requiring “direct evidence” of malice) with Elliott v. Perez, 751 F.2d 1472, 1482 (5th Cir.1985) (requiring only that a plaintiff “alleg[e] with particularity all material facts on which he contends he will establish his right to recovery, which will include detailed facts supporting the contention that the plea of immunity cannot be sustained.”). Furthermore, the Court notes that revision of the Texas court's decision is entirely proper. See 1B James W. Moore et al., Moore's Federal Practice ¶ 0.404[4.–1] at II–9 to –10 (1993) (“[T]here are innumerable ... orders and rulings that the district court may make as a case moves from the filing of the complaint to trial and judgment. All of these decisions are interlocutory in character, and remain subject to reconsideration and change at any time until the entry of judgment.”); cf. Fed.R.Civ.P. 54(b) (providing, as to multiple claim or multiple party cases, that “[i]n the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties”). The Texas court did find that it lacked personal jurisdiction over the Inspectors. See Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinée, 456 U.S. 694, 701 (1982) (“The validity of an order of a federal court depends upon that court's having jurisdiction over both the subject matter and the parties.”). The Court will accordingly vacate the portion of the Texas court's order that permitted discovery to proceed against the Inspectors and will dismiss the complaint against the Inspectors in Civil No. 92–2288 because Moore has failed to meet the heightened pleading standard for Bivens actions.

*7 Because the Inspectors are the only remaining individual defendants in these two lawsuits, after their dismissal only the claims of Moore and his wife against the United States survive. In Civil No. 92–2288, these claims are limited to the plaintiffs' common law claims for slander, defamation, invasion of privacy, false arrest, abuse of process, and malicious prosecution. In Civil No. 93–0324, however, the plaintiffs seek recovery for both common law torts and alleged constitutional violations. Counts I, II, and III of the complaint in Civil No. 93–0324 seek damages for malicious prosecution, false arrest, and abuse of process. Counts IV, V, and VI of the complaint seek damages for violations of the First and Fifth Amendments to the United States Constitution.

The FTCA, however, exposes the United States to liability only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Courts have interpreted this phrase to mean that only claims brought under state law are cognizable under the FTCA. See, e.g., Meyer v. Fidelity Sav., 944 F.2d 562, 568 (9th Cir.1991) ( “Because ‘the constitutional tort is a child of federal law, the United States is not liable for such torts under the Federal Tort Claims Act.’ ”). The Court will accordingly dismiss counts IV, V, and VI of the complaint in Civil No. 93–0324, because these counts state constitutional causes of action to which the United States has not waived its sovereign immunity.

The only claims remaining, therefore, are the common law causes of action against the United States. Both lawsuits seek relief on substantially the same grounds; the only difference is that Civil No. 93–0324 alleges satisfaction of the administrative remedy procedure under the FTCA, while Civil No. 92–2288 does not.³ These grounds, as summarized by the plaintiffs themselves, are allegations that the government

The FTCA waives the United States' sovereign immunity from suits for negligent or wrongful acts of Government employees, subject to certain exceptions set forth in 28 U.S.C. § 2680. The “discretionary function” exception provides that the government is not liable for

The court in Gray expressly identified “the presentation of evidence to the Grand Jury” as involving the sort of “purely discretionary decisions” that § 2680(a) was intended to protect. 712 F.2d at 515–16. The plaintiffs claim, nevertheless, that the government should be held liable for failing to present exculpatory evidence to the grand jury.⁴ The Court notes first that in United States v. Williams, 112 S.Ct. 1735, 1744–46 (1992), the Supreme Court held that the government is under no duty whatsoever to present exculpatory evidence to a grand jury. In deciding Williams the Court overruled a number of contrary holdings by other federal courts, including Judge Revercomb's declaration, in Moore's criminal case, that a prosecutor may not “hide evidence that clearly negates guilt from the grand jury.” United States v. Recognition Equipment, Inc., 711 F.Supp. 1, 12 (D.D.C.1989).

More relevant to our inquiry here, however, is the nature of a prosecutor's determination that a given item of evidence is “exculpatory.” Judge Revercomb also observed that if prosecutors were forced to justify all their evidentiary decisions, “nearly every indictment would be vulnerable to charges that the prosecutor failed to submit each and every scrap of evidence, circumstantial or direct, that arguably could have worked in favor of the defendant.” Id. at 11–12. This is precisely the sort of conduct that the discretionary function exception to the FTCA was intended to prevent. Exculpatory evidence does not come labeled as such. Instead, the decision whether to submit evidence to a grand jury on the grounds that it is “exculpatory” calls invariably for an exercise of discretionary judgment rooted in policy concerns. Such decisions are therefore inextricably “intertwined with purely discretionary decisions of the prosecutors,” Gray, 712 F.2d at 515, and cannot form the basis of a cause of action against the United States.⁵

*9 The plaintiffs' claim that the government should be held liable for failing to disclose Brady material must be rejected for the same reason. In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme Court held that a prosecutor has a duty to disclose, upon request, all exculpatory evidence which is material either to guilt or to punishment. Although courts have reviewed evidence in the criminal context to determine whether it falls within the scope of Brady, this does not mean that they can or should do so in the context of a civil tort action. No mechanical formula exists for determining whether evidence is exculpatory. Government agents would be hampered in their decisionmaking if the government could be held liable because they made a faulty “judgment call.” Congress created the discretionary function exception in recognition of this fact.

Finally, the plaintiffs' allegation that the government “intimidated and harassed witnesses” also implicates actions that are closely linked to prosecutorial discretion. The conduct to which the plaintiffs refer here is the government's alleged attempt to “coerce incriminating testimony” from a witness by tearing up his immunity letter in front of his face and by threatening to prosecute his son. See Compl. (Civil No. 93–0324) at 10–11. In Gray, however, the Court of Appeals established that “[p]rosecutorial decisions as to whether, when and against whom to initiate prosecution are quintessential examples of governmental discretion in enforcing the criminal law, and, accordingly, courts have uniformly found them to be immune under the discretionary function exception.” 712 F.2d at 513. To hold the government liable because it threatened to prosecute a witness's son would be to second-guess its decision about “whether, when and against whom to initiate prosecution,” a decision that is clearly committed to its sole discretion. Similarly, the decision whether to grant or deny immunity to a witness is also closely linked to the decision whether to prosecute that witness. Whether these decisions were made with malicious intent is irrelevant, as § 2680(a) preserves the government's sovereign immunity “whether or not the discretion involved be abused.” Thus, neither of these actions can support a claim for damages against the United States.⁶

The discretionary function exception thus exempts the United States from liability for all the common law claims alleged in both of the plaintiffs' lawsuits. Having concluded that the Bivens claims against the Inspectors and the constitutional claims against the United States must also be dismissed, the Court will accordingly enter an order dismissing both Civil No. 92–2288 and Civil No. 93–0324. All other pending motions in this case will be denied as moot. An appropriate order will issue.