HARTMAN v. MOORE (No. 04-1495)
388 F. 3d 871, reversed and remanded

RETALIATORY PROSECUTION, FIRST AMENDMENT RIGHTS, PROSECUTORIAL DISCRETION, PROBABLE CAUSE: This is a Bivens action against criminal investigators for inducing prosecution in retaliation for speech. ... The question is whether the complaint states an actionable violation of the First Amendment without alleging an absence of probable cause to support the underlying criminal charge. We hold that want of probable cause must be alleged and proven.The significance of probable cause or the lack of it looms large, being a potential feature of every case, with obvious evidentiary value. Though not necessarily dispositive, the absence of probable cause along with a retaliatory motive on the part of the official urging prosecution are reasonable grounds to suspend the presumption of regularity behind the charging decision and enough for a prima facie inference that the unconstitutionally motivated inducement infected the prosecutor’s decision to go forward

Justice Souter, Opinion of the Court

SUPREME COURT OF
THE UNITED STATES

MICHAEL HARTMAN, FRANK KORMANN,
PIERCE McINTOSH, NORMAN ROBBINS,
and ROBERT EDWARDS, PETITIONERS
v.
WILLIAM G. MOORE, Jr.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 04–1495
Argued January 10, 2006
Decided April 26, 2006

Justice Souter delivered the opinion of the Court.

This is a Bivens action against criminal investigators for inducing prosecution in retaliation for speech. The question is whether the complaint states an actionable violation of the First Amendment without alleging an absence of probable cause to support the underlying criminal charge. We hold that want of probable cause must be alleged and proven.

In the 1980’s, respondent William G. Moore, Jr., was the chief executive of Recognition Equipment Inc. (REI), which manufactured a multiline optical character reader for interpreting multiple lines of text. Although REI had received some $50 million from the United States Postal Service to develop this technology for reading and sorting mail, the Postmaster General and other top officials of the Postal Service were urging mailers to use nine-digit zip codes (Zip + 4), which would provide enough routing information on one line of text to allow single-line scanning machines to sort mail automatically by reading just that line.

Besides Moore, who obviously stood to gain financially from the adoption of multiline technology, some Members of Congress and Government research officers had reservations about the Postal Service’s Zip + 4 policy and its intended reliance on single-line readers. Critics maligned single-line scanning technology, objected to the foreign sources of single-line scanners, decried the burden of remembering the four extra numbers,¹ and echoed the conclusion reached by the United States Office of Technology Assessment, that use of the single-line scanners in preference to multiliners would cost the Postal Service $1 million a day in operational losses.

Moore built on this opposition to Zip + 4, by lobbying Members of Congress, testifying before congressional committees, and supporting a “Buy American” rider to the Postal Service’s 1985 appropriations bill. Notwithstanding alleged requests by the Postmaster General to be quiet, REI followed its agenda by hiring a public-relations firm, Gnau and Associates, Inc. (GAI), which one of the Postal Service’s governors, Peter Voss, had recommended.

The campaign succeeded, and in July 1985 the Postal Service made what it called a “mid-course correction” and embraced multiline technology. Brief for Respondent 4. But the change of heart did not extend to Moore and REI, for the Service’s ensuing order of multiline equipment, valued somewhere between $250 million and $400 million went to a competing firm.

Not only did REI lose out on the contract, but Moore and REI were soon entangled in two investigations by Postal Service inspectors. The first looked into the purported payment of kickbacks by GAI to Governor Voss for Voss’s recommendations of GAI’s services, as in the case of REI; 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. United States v. Recognition Equip. Inc., 725 F. Supp. 587, 596 (DC 1989).

Moore then brought an action in the Northern District of Texas for civil liability under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) ,² against the prosecutor and the five postal inspectors who are petitioners here (a sixth having died). His complaint raised five causes of action, only one of which is relevant here, 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. In the course of these proceedings Moore has argued, among other things, that the postal inspectors launched a criminal investigation against him well before they had any inkling of either of the two schemes mentioned above, that the inspectors targeted him for his lobbying activities, and that they pressured the United States Attorney’s Office to have him indicted. Moore also sought recovery from 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. Moore v. Valder, Civil Action No. 3:91–CV–2491–G (ND Tex., Sept. 21, 1992).³

The claims remaining were transferred to the District Court for the District of Columbia, where Moore’s suit was dismissed in its entirety, Civ. Nos. 92–2288 (NHJ), 93–0324 (NHJ), 1993 WL 405785 (Sept. 24, 1993), only to have the Court of Appeals for the District of Columbia Circuit reinstate the retaliatory-prosecution claim. Moore v. Valder, 65 F. 3d 189 (1995). The District Court then permitted limited discovery on that matter so far as the inspectors were involved, but again dismissed the remaining charges against the United States and the prosecutor. Moore v. Valder, Civil Action No. 92–2288 (NHJ) et al., Record, Tab No. 32 (Memorandum Opinion, Feb. 5, 1998). 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. Moore v. United States, 213 F. 3d 705 (2000).

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. 388 F. 3d 871 (2004).

The Courts of Appeals have 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 burden plaintiffs with the obligation to show its absence. See, e.g., Wood v. Kesler, 323 F. 3d 872, 883 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252, 260 (CA5 2002); Mozzochi v. Borden, 959 F. 2d 1174, 1179–1180 (CA2 1992). Others, including the District of Columbia Circuit, impose no such requirement. See, e.g., Poole v. County of Otero, 271 F. 3d 955, 961 (CA10 2001); Haynesworth v. Miller, 820 F. 2d 1245, 1256–1257 (CADC 1987). We granted certiorari, 545 U. S. ___ (2005), to resolve the Circuit split and now reverse.

Official reprisal for protected speech “offends the Constitution [because] it threatens to inhibit exercise of the protected right,” Crawford-El v. Britton, 523 U. S. 574 , n. 10 (1998), and the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions, including criminal prosecutions, for speaking out, id., at 592; see also Perry v. Sindermann, 408 U. S. 593, 597 (1972) (noting that the government may not punish a person or deprive him of a benefit on the basis of his “constitutionally protected speech”). Some official actions adverse to such a speaker might well be unexceptionable if taken on other grounds, but when nonretaliatory grounds are in fact insufficient to provoke the adverse consequences, we have held thatretaliation is subject to recovery as the but-for cause of official action offending the Constitution. See Crawford-El, supra, at 593; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 283–284 (1977) (adverse action against government employee cannot be taken if it is in response to the employee’s “exercise of constitutionally protected First Amendment freedoms”). When the vengeful officer is federal, he is subject to an action for damages on the authority of Bivens. See 403 U. S., at 397.

III

Despite a procedural history portending another Jarndyce v. Jarndyce,⁴ the issue before us is straightforward: whether a plaintiff in a retaliatory-prosecution action must plead and show the absence of probable cause for pressing the underlying criminal charges.⁵

The inspectors argue on two fronts that absence of probable cause should be an essential element. Without such a requirement, they first say, the Bivens claim is too readily available. A plaintiff can afflict a public officer with disruption and expense by alleging nothing more, in practical terms, than action with a retaliatory animus, a subjective condition too easy to claim and too hard to defend against. Brief for Petitioners 21–23; see also National Archives and Records Admin. v. Favish, 541 U. S. 157, 175 (2004) (allegations of government misconduct are “ ‘easy to allege and hard to disprove’ ”). In the inspectors’ view, some “objective” burden must be imposed on these plaintiffs, simply to filter out the frivolous. The second argument complements the first, for the inspectors believe that the traditional tort of malicious prosecution tells us what the objective requirement should be. Brief for Petitioners 24–29. In an action for malicious prosecution after an acquittal, a plaintiff must show that the criminal action was begun without probable cause for charging the crime in the first place; the inspectors see retaliatory prosecution under Bivens as a close cousin of malicious prosecution under common law, making the latter’s no-probable-cause requirement a natural feature of the constitutional tort.See Heck v. Humphrey, 512 U. S. 477 , and 484, n. 4 (1994).

In fact, we think there is a fair argument for what the inspectors call an “objective” fact requirement in this type of case, but the nub of that argument differs from the two they set out, which we will deal with only briefly. As for the invitation to rely on common-law parallels, we certainly are ready to look at the elements of common-law torts when we think about elements of actions for constitutional violations, see Carey v. Piphus, 435 U. S. 247, 258 (1978) , but the common law is best understood here more as a source of inspired examples than of prefabricated components of Bivens torts. See, e.g., Albright v. Oliver, 510 U. S. 266, 277, n. 1 (1994) (Ginsburg, J., concurring); Bivens, supra, at 394; cf. Baker v. McCollan, 443 U. S. 137, 146 (1979) . And in this instance we could debate whether the closer common-law analog to retaliatory prosecution is malicious prosecution (with its no-probable-cause element) or abuse of process (without it). Compare Heck, 512 U. S., at 483–485, and 484, n. 4 with id., at 493–496 (Souter, J., concurring in judgment).

Nor is there much leverage in the fear that without a filter to screen out claims federal prosecutors and federal courts will be unduly put upon by the volume of litigation. The basic concern is fair enough, but the slate is not blank. Over the past 25 years fewer than two dozen damages actions for retaliatory prosecution under Bivens or §1983 have come squarely before the Federal Courts of Appeals, and there is no disproportion of those cases in Circuits that do not require showing an absence of probable cause.⁶

It is, instead, the need to prove a chain of causation from animus to injury, with details specific to retaliatory-prosecution cases, that provides the strongest justification for the no-probable-cause requirement espoused by the inspectors. Although a Bivens (or §1983) plaintiff must show a causal connection between a defendant’s retaliatory animus and subsequent injury in any sort of retaliation action, see Crawford-El, 523 U. S., at 593; Mt. Healthy, 429 U. S., at 285–287, the need to demonstrate causation in the retaliatory-prosecution context presents an additional difficulty that can be understood by comparing the requisite causation in ordinary retaliation claims, where the government agent allegedly harboring the animus is also the individual allegedly taking the adverse action, with causation in a case like this one.

Take the example of a public employee’s claim that he was fired for speech criticizing the government. See, e.g., Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563, 566–567 (1968) (allegation that a school board dismissed a teacher for writing a public letter critical of the board’s financial administration). While the employee plaintiff obviously must plead and prove adverse official action in retaliation for making the statements, our discussions of the elements of the constitutional tort do not specify any necessary details about proof of a connection between the retaliatory animus and the discharge, which will depend on the circumstances. Cf. Crawford-El, supra, at 593 (“[A]t least with certain types of claims, proof of an improper motive is not sufficient to establish a constitutional violation—there must also be evidence of causation”). The cases have simply taken the evidence of the motive and the discharge as sufficient for a circumstantial demonstration that the one caused the other. See, e.g., Mt. Healthy, supra, at 287; see also Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 270, n. 21 (1977) . It is clear, moreover, that the causation is understood to be but-for causation, without which the adverse action would not have been taken; we say that upon a prima facieshowing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of (such as firing the employee). See Mt. Healthy, 429 U. S., at 287. If there is a finding that retaliation was not the but-for cause of the discharge, the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official’s mind. See ibid. It may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway. See Crawford-El, supra, at 593; Mt. Healthy, supra, at 285–286.

When the claimed retaliation for protected conduct is a criminal charge, however, a constitutional tort action will differ from this standard case in two ways. Like any other plaintiff charging official retaliatory action, the plaintiff in a retaliatory-prosecution claim must prove the elements of retaliatory animus as the cause of injury, and the defendant will have the same opportunity to respond to a prima facie case by showing that the action would have been taken anyway, independently of any retaliatory animus. What is different about a prosecution case, however, is that there will always be a distinct body of highly valuable circumstantial evidence available and apt to prove or disprove retaliatory causation, namely evidence showing whether there was or was not probable cause to bring the criminal charge. Demonstrating that there was no probable cause for the underlying criminal charge will tend to reinforce the retaliation evidence and show that retaliation was the but-for basis for instigating the prosecution, while establishing the existence of probable cause will suggest that prosecution would have occurred even without a retaliatory motive. This alone does not mean, of course, that a Bivens or §1983 plaintiff should be required to plead and prove no probable cause, but it does mean that litigating probable cause will be highly likely in any retaliatory-prosecution case, owing to its powerful evidentiary significance.⁷

The second respect in which a retaliatory-prosecution case is different also goes to the causation that a Bivens plaintiff must prove; the difference is that the requisite causation between the defendant’s retaliatory animus and the plaintiff’s injury is usually more complex than it is in other retaliation cases, and the need to show this more complex connection supports a requirement that no probable cause be alleged and proven. A Bivens (or §1983) action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute, Imbler v. Pachtman, 424 U. S. 409, 431 (1976) .⁸ Instead, the defendant will be a non-prosecutor, an official, like an inspector here, who may have influenced the prosecutorial decision but did not himself make it, and the cause of action will not be strictly for retaliatory prosecution, but for successful retaliatory inducement to prosecute.⁹ The consequence is that a plaintiff like Moore must show that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that would not have been initiated without his urging.

Thus, the causal connection required here is not merely between the retaliatory animus of one person and that person’s own injurious action, but between the retaliatory animus of one person and the action of another. See 213 F. 3d, at 710 (“In order to find that a defendant procured a prosecution, the plaintiff must establish ‘a chain of causation’ linking the defendant’s actions with the initiation of criminal proceedings”); see also Barts v. Joyner, 865 F. 2d 1187, 1195 (CA11 1989) (plaintiff seeking damages incident to her criminal prosecution would have to show that the police, who allegedly acted in violation of law in securing her arrest, unduly pressured or deceived prosecutors); Dellums v. Powell, 566 F. 2d 167, 192–193 (CADC 1977) (where allegation of misconduct is directed at police, a malicious-prosecution claim cannot stand if the decision made by the prosecutor to bring criminal charges was independent of any pressure exerted by police); cf. Smiddy v. Varney, 665 F. 2d 261, 267 (CA9 1981) (“[W]here police officers do not act maliciously or with reckless disregard for the rights of an arrested person, they are not liable for damages suffered by the arrested person after a district attorney files charges unless the presumption of independent judgment by the district attorney is rebutted”).

Herein lies the distinct problem of causation in cases like this one. Evidence of an inspector’s animus does not necessarily show that the inspector induced the action of a prosecutor who would not have pressed charges otherwise. Moreover, to the factual difficulty of divining the influence of an investigator or other law enforcement officer upon the prosecutor’s mind, there is an added legal obstacle in the longstanding presumption of regularity accorded to prosecutorial decisionmaking. See Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 489–490 (1999) ; United States v. Armstrong, 517 U. S. 456, 464–466 (1996) . And this presumption that a prosecutor has legitimate grounds for the action he takes is one we do not lightly discard, given our position that judicial intrusion into executive discretion of such high order should be minimal, see Wayte v. United States, 470 U. S. 598, 607–608 (1985) .

Some sort of allegation, then, is needed both to bridge the gap between the nonprosecuting government agent’s motive and the prosecutor’s action, and to address the presumption of prosecutorial regularity. And at the trial stage, some evidence must link the allegedly retaliatory official to a prosecutor whose action has injured the plaintiff. The connection, to be alleged and shown, is the absence of probable cause.

It would be open to us, of course, to give no special prominence to an absence of probable cause in bridging the causal gap, and to address this distinct causation concern at a merely general level, leaving it to such pleading and proof as the circumstances allow. A prosecutor’s disclosure of retaliatory thinking on his part, for example, would be of great significance in addressing the presumption and closing the gap. So would evidence that a prosecutor was nothing but a rubber stamp for his investigative staff or the police. Cf. Mt. Healthy, 429 U. S., at 281–283. (evidence that the board of education, which formally decided not to rehire a teacher, was only nominally distinct from the school superintendent, who allegedly bore the retaliatory animus). In fact, though, these examples are likely to be rare and consequently poor guides in structuring a cause of action. In most cases, for instance, it would be unrealistic to expect a prosecutor to reveal his mind even to the degree that this record discloses, with its reported statement by the prosecutor that he was not galvanized by the merits of the case, but sought the indictment against Moore because he wanted to attract the interest of a law firm looking for a tough trial lawyer.¹⁰

Accordingly, the significance of probable cause or the lack of it looms large, being a potential feature of every case, with obvious evidentiary value. True, it is not necessarily dispositive: showing an absence of probable cause may not be conclusive that the inducement succeeded, and showing its presence does not guarantee that inducement was not the but-for fact in a prosecutor’s decision. But a 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, see Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978) (emphasizing that “so long as the prosecutor has probable cause,” the charging decision is generally discretionary), and enough for a prima facieinference that the unconstitutionally motivated inducement infected the prosecutor’s decision to bring the charge.

Our sense is that the very significance of probable cause means that a requirement to plead and prove its absence will usually be cost free by any incremental reckoning. The issue is so likely to be raised by some party at some point that treating it as important enough to be an element will be a way to address the issue of causation without adding to time or expense. See n. 7, supra. In this case, for example, Moore cannot succeed in the retaliation claim without showing that the Assistant United States Attorney was worse than just an unabashed careerist, and if he can show that the prosecutor had no probable cause, the claim of retaliation will have some vitality.

In sum, the complexity of causation in a claim that prosecution was induced by an official bent on retaliation should be addressed specifically in defining the elements of the tort. Probable cause or its absence will be at least an evidentiary issue in practically all such cases. Because showing an absence of probable cause will have high probative force, and can be made mandatory with little or no added cost, it makes sense to require such a showing as an element of a plaintiff’s case, and we hold that it must be pleaded and proven.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

The Chief Justice and Justice Alito took no part in the consideration or decision of this case.

Notes

1 See, e.g., Seaberry, Durenberger Begins Campaign Against Nine-Digit Zip Code, Washington Post, Feb. 24, 1981, p. E4 (describing Senator David Durenberger’s reference to the Zip + 4 campaign as “ ‘a mnemonic plague of contagious digititous’ ”).

2 “Bivens established that the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right.” Carlson v. Green, 446 U. S. 14, 18 (1980) . Though more limited in some respects not relevant here, a Bivens action is the federal analog to suits brought against state officials under Rev. Stat. §1979, 42 U. S. C. §1983. See Wilson v. Layne, 526 U. S. 603, 609 (1999) ; see also Waxman & Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112Yale L. J. 2195, 2208 (2003) (“Section 1983 applies … to state and local officers, [and] the Supreme Court in Bivens . . . inferred a parallel damages action against federal officers”).

3 Moore and his wife had originally filed this complaint jointly. Her claims were dismissed for lack of standing.

4 See 2 C. Dickens, Bleak House 85 (1853).

5 Moore contends that we (like the Court of Appeals before us) exceed our appellate jurisdiction when we address the issue of probable cause, see Brief for Respondent 37–39, but his argument is mistaken. It is true that the disagreement over a no-probable-cause requirement arose on the inspectors’ motion for summary judgment on their qualified-immunity defense; Moore stresses that an interlocutory appeal can be taken from the rejection of qualified immunity at the summary-judgment stage only on questions turning on the definition of the violation, not on the sufficiency of the evidence to show that a defendant is in fact entitled to the immunity claimed. See Mitchell v. Forsyth, 472 U. S. 511, 528 (1985) . Moore says that the issue of probable cause or its absence is simply an evidentiary matter going to entitlement in fact. But the inspectors are making more than a claim about the evidence in this case: they are arguing that we should hold that a showing of no probable cause is an element of the kind of claim Moore is making against them. In agreeing with the inspectors, we are addressing a requirement of causation, which Moore must plead and prove in order to win, and our holding does not go beyond a definition of an element of the tort, directly implicated by the defense of qualified immunity and properly before us on interlocutory appeal. See ibid.; see also Crawford-El v. Britton, 523 U. S. 574, 588, 592–593 (1998) ; Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 285–286 (1977) .

6 In fact, many of the appellate challenges have been brought in the Second, Fifth, and Eleventh Circuits, all of which require plaintiffs to show an absence of probable cause. See, e.g., Izen v. Catalina, 398 F. 3d 363 (CA5 2005) (per curiam); Wood v. Kesler, 323 F. 3d 872 (CA11 2003); Keenan v. Tejeda, 290 F. 3d 252 (CA5 2002); Singer v. Fulton County Sheriff, 63 F. 3d 110 (CA2 1995); Post v. Fort Lauderdale, 7 F. 3d 1552 (CA11 1993); Mozzochi v. Borden, 959 F. 2d 1174 (CA2 1992); Magnotti v. Kuntz, 918 F. 2d 364 (CA2 1990).

7 Indeed, even though the Court of Appeals in this case held that plaintiffs do not have to show an absence of probable cause in order to make retaliatory-prosecution claims, it nevertheless acknowledged probable cause’s significance in such suits. See 388 F. 3d 871, 881 (CADC 2004) (“Given that probable cause ordinarily suffices to initiate a prosecution, that showing will be enough in most cases to establish that prosecution would have occurred absent bad intent. A Bivens recovery remains possible, however, in those rare cases where strong motive evidence combines with weak probable cause to support a finding that the prosecution would not have occurred but for the officials’ retaliatory animus”).

8 An action could still be brought against a prosecutor for conduct taken in an investigatory capacity, to which absolute immunity does not extend. See Buckley v. Fitzsimmons, 509 U. S. 259, 274–276 (1993) (no absolute immunity when prosecutor acts in administrative capacity); Burns v. Reed, 500 U. S. 478, 492–495 (1991) (absolute immunity does not attach when a prosecutor offers legal advice to the police regarding interrogation practices). In fact, Moore’s complaint charged the prosecutor with acting in an investigative as well as in a prosecutorial capacity, see App. 45, but dismissal of the complaint as against the prosecutor was affirmed in 213 F. 3d 705, 710 (CADC 2000), and no claim against him is before us now.

9 No one here claims that simply conducting a retaliatory investigation with a view to promote a prosecution is a constitutional tort. That is not part of Moore’s complaint. See App. 33–34, 38–45. Whether the expense or other adverse consequences of a retaliatory investigation would ever justify recognizing such an investigation as a distinct constitutional violation is not before us.

10 Some may suggest that we should structure a cause of action in the alternative, dispensing with a requirement to show no probable cause when a plaintiff has evidence of a direct admission by a prosecutor that, irrespective of probable cause, the prosecutor’s sole purpose in initiating a criminal prosecution was to acquiesce to the inducements of other government agents, who themselves harbored retaliatory animus. Cf. United States v. Armstrong, 517 U. S. 456 , n. 3 (1996) (leaving open the question “whether a [criminal] defendant must satisfy the similarly situated requirement in a case ‘involving direct admissions by [prosecutors] of discriminatory purpose’ ” (brackets in original)). But this would seem a little like proposing that retirement plans include the possibility of winning the lottery. Unambiguous admissions of successful inducement are likely to be rare, and hassles over the adequacy of admissions will be the predictable result, if any exemption to a no-probable-cause requirement is allowed.

JONES v. FLOWERS (No. 04-1477) Thomas' Dissent
359 Ark. 443, _ S. W. 3d _, reversed and remanded.

If “title to property should not depend on [factual] vagaries,” Dusenberry, supra, at 171, then certainly it cannot turn on “wrinkle[s],” ante, at 5, caused by a property owner’s own failure to be a prudent ward of his interests. The meaning of the Constitution should not turn on the antics of tax evaders and scofflaws. Nor is the self-created conundrum in which petitioner finds himself a legitimate ground for imposing additional constitutional obligations on the State. The State’s attempts to notify petitioner by certified mail at the address that he provided and, additionally, by publishing notice in a local newspaper satisfy due process. Accordingly, I would affirm the judgment of the Arkansas Supreme Court.

Justice Thomas, with whom Justice Scalia and Justice Kennedy join, dissenting

SUPREME COURT OF
THE UNITED STATES

GARY KENT JONES, PETITIONER
v.
LINDA K. FLOWERS et al.

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARKANSAS

[April 26, 2006]

Justice Thomas, with whom Justice Scalia and Justice Kennedy join, dissenting.

When petitioner failed to pay his property taxes for several consecutive years, respondent Commissioner of State Lands in Arkansas, using the record address that petitioner provided to the State, sent petitioner a letter by certified mail, noting his tax delinquency and explaining that his property would be subject to public sale if the delinquent taxes and penalties were not paid. After petitioner failed to respond, the State also published notice of the delinquency and public sale in an Arkansas newspaper. Soon after respondent Linda K. Flowers submitted a purchase offer to the State, it sent petitioner a second letter by certified mail explaining that the sale would proceed if the delinquent taxes and penalties were not paid.

Petitioner argues that the State violated his rights under the Due Process Clause of the Fourteenth Amendment because, in his view, the State failed to take sufficient steps to contact him before selling his property to Flowers. Petitioner contends that once the State became aware that he had not claimed the certified mail, it was constitutionally obligated to employ additional methods to locate him.

Adopting petitioner’s arguments, the Court holds today that “when mailed notice of a tax sale is returned unclaimed, the State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so.” Ante, at 4. The Court concludes that it was practicable for Arkansas to take additional steps here—namely, notice by regular mail, posting notice on petitioner’s door, and addressing mail to “occupant.” Ante, at 13. Because, under this Court’s precedents, the State’s notice methods clearly satisfy the requirements of the Due Process Clause, I respectfully dissent.

The Fourteenth Amendment prohibits the States from “depriv[ing] any person of life, liberty, or property, without due process of law.” This Court has held that a State must provide an individual with notice and opportunity to be heard before the State may deprive him of his property. Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 313 (1950) . Balancing a State’s interest in efficiently managing its administrative system and an individual’s interest in adequate notice, this Court has held that a State must provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action.” Id., at 313–314. As this Court has explained, “when notice is a person’s due … [t]he means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” Id., at 315. “[H]eroic efforts,” however, are not required. Dusenbery v. United States, 534 U. S. 161, 170 (2002) . To the contrary, we have expressly rejected “[a] construction of the Due Process Clause which would place impossible or impractical obstacles in the way [of the State].” Mullane, supra, at 313–314. Thus, “none of our cases … has required actual notice”; instead, “we have allowed the Government to defend the ‘reasonableness and hence the constitutional validity of any chosen method … on the ground that it is in itself reasonably certain to inform those affected.’ ” Dusenbery, supra, at 169–170 (quoting Mullane, supra, at 315).

The methods of notice employed by Arkansas were reasonably calculated to inform petitioner of proceedings affecting his property interest and thus satisfy the requirements of the Due Process Clause. The State mailed a notice by certified letter to the address provided by petitioner. The certified letter was returned to the State marked “unclaimed” after three attempts to deliver it. The State then published a notice of public sale containing redemption information in the Arkansas Democrat Gazette newspaper. After Flowers submitted a purchase offer, the State sent yet another certified letter to petitioner at his record address. That letter, too, was returned to the State marked “unclaimed” after three delivery attempts.¹

Arkansas’ attempts to contact petitioner by certified mail at his “record address,” without more, satisfy due process. Dusenbery, supra, at 169. See also Mullane, supra, at 318; Tulsa Professional Collection Services, Inc. v. Pope, 485 U. S. 478, 490 (1988) (“We have repeatedly recognized that mail service is an inexpensive and efficient mechanism that is reasonably calculated to provide actual notice”); Mennonite Bd. of Missions v. Adams, 462 U. S. 791, 792, 798 (1983) (holding that “notice mailed to [the affected party’s] last known available address” is sufficient where a State seeks to sell “real property on which payments of property taxes have been delinquent” (emphasis added)). Because the notices were sent to the address provided by petitioner himself, the State had an especially sound basis for determining that notice would reach him. Moreover, Arkansas exceeded the constitutional minimum by additionally publishing notice in a local newspaper.² See Mullane, supra, at 318. Due process requires nothing more—and certainly not here, where petitioner had a statutory duty to pay his taxes and to report any change of address to the state taxing authority. See Ark. Code Ann. §26–35–705 (1997).

My conclusion that Arkansas’ notice methods satisfy due process is reinforced by the well-established presumption that individuals, especially those owning property, act in their own interest. Recognizing that “ ‘[i]t is the part of common prudence for all those who have any interest in [a thing], to guard that interest by persons who are in a situation to protect it,’ ” Mullane, supra, at 316 (quoting The Mary, 9 Cranch 126, 144(1815)), this Court has concluded that “[t]he ways of an owner with tangible property are such that he usually arranges means to learn of any direct attack upon his possessory or proprietary rights.” Mullane, 339 U. S., at 316. Consistent with this observation, Arkansas was free to “indulge the assumption” that petitioner had either provided the State taxing authority with a correct and up-to-date mailing address—as required by state law—“or that he … left some caretaker under a duty to let him know that [his property was] being jeopardized.”³ Ibid.

The Court does not conclude that certified mail is inherently insufficient as a means of notice, but rather that “the government’s knowledge that notice pursuant to the normal procedure was ineffective triggered an obligation on the government’s part to take additional steps to effect notice.” Ante, at 9. I disagree.

First, whether a method of notice is reasonably calculated to notify the interested party is determined ex ante, i.e., from the viewpoint of the government agency at the time its notice is sent. This follows from Mullane, where this Court rested its analysis on the information the sender had “at hand” when its notice was sent. 339 U. S., at 318. Relatedly, we have refused to evaluate the reasonableness of a particular method of notice by comparing it to alternative methods that are identified after the fact. See Dusenbery, 534 U. S., at 171–172. Today the Court appears to abandon both of these practices. Its rejection of Arkansas’ selected method of notice—a method this Court has repeatedly concluded is constitutionally sufficient—is based upon information that was unavailable when notice was sent. Indeed, the Court’s proposed notice methods—regular mail, posting and addressing mail to “occupant,” ante, at 12–14—are entirely the product of post hoc considerations, including the discovery that members of petitioner’s family continued to live in the house. Similarly, the Court’s observation that “[t]he Commissioner[’s] complain[t] about the burden of … additional steps … is belied by Arkansas’ current requirement that notice to homestead-owners be accomplished by personal service if certified mail is returned,” ante, at 14–15, is contrary to Dusenbery’s “conclusion that the Government ought not be penalized and told to ‘try harder’ … simply because [it] has since upgraded its policies,” 534 U. S., at 172 (citation omitted).

Second, implicit in our holding that due process does not require “actual notice,” see id., at 169–170, is that when the “government becomes aware … that its attempt at notice has failed,” ante, at 5, it is not required to take additional steps to ensure that notice has been received. Petitioner’s challenge to Arkansas’ notice methods, and the Court’s acceptance of it, is little more than a thinly veiled attack on Dusenbery. Under the majority’s logic, each time a doubt is raised with respect to whether notice has reached an interested party, the State will have to consider additional means better calculated to achieve notice. Because this rule turns on speculative, newly acquired information, it has no natural end point, and, in effect, requires the States to achieve something close to actual notice. The majority’s new rule is contrary to Dusenbery and a significant departure from Mullane.

The only circumstances in which this Court has found notice by mail and publication inadequate under the Due Process Clause involve situations where the state or local government knew at the outset that its notice efforts were destined to fail and knew how to rectify the problem prior to sending notice. See Robinson v. Hanrahan, 409 U. S. 38, 39 (1972) (per curiam) (intended recipient known to be in jail); Covey v. Town of Somers, 351 U. S. 141, 145 (1956) (intended recipient known to be incompetent and without a guardian).

In Robinson, the State, having arrested petitioner and detained him in county jail, immediately instituted forfeiture proceedings against his automobile and mailed notice of those proceedings to his residential address. 409 U. S., at 38. Robinson, who was incarcerated in the county jail during the entirety of the forfeiture proceedings, did not receive notice of the proceedings until after he was released and the forfeiture order had been entered. Id., at 38–39. Because the State knew beforehandthat Robinson was not at, and had no access to, the address to which it sent the notice, this Court held that the State’s efforts were not “reasonably calculated” to notify him of the pending proceedings. Id., at 40. Similarly, in Covey, the Court concluded that the methods of notice used by the town—mailing, posting, and publishing—were not reasonably calculated to inform Covey of proceedings adverse to her property interests because local officials knew prior to sending notice that she was “without mental capacity to handle her affairs” and unable to comprehend the meaning of the notices. 351 U. S., at 144, 146.

By contrast, Arkansas did not know at the time it sent notice to petitioner that its method would fail; and Arkansas did not know that petitioner no longer lived at the record address simply because letters were returned “unclaimed.” Pet. for Cert. 3. “[U]nclaimed” does not necessarily mean that an address is no longer correct; it may indicate that an intended recipient has simply failed or refused to claim mail. See United States Postal Service, Domestic Mail Manual (DMM), §507, Exh. 1.4.1, http://pe.usps.gov/text/dmm300/507.htm.⁴ Given that the State had been using the address provided by petitioner and that petitioner had a legal duty to maintain a current mailing address with the state taxing authority, return of the mail as “unclaimed” did not arm Arkansas with the type of specific knowledge that the governments had at hand in Robinson and Covey. Cf. ante, at 13. The State cannot be charged to correct a problem of petitioner’s own creation and of which it was not aware.⁵ Even if the State had divined that petitioner was no longer at the record address, its publication of notice in a local newspaper would have sufficed because Mullane authorizes the use of publication when the record address is unknown. See 339 U. S., at 316 (“[P]ublication traditionally has been acceptable as notification supplemental to other action which in itself may reasonably be expected to convey a warning”).

The Court’s proposed methods, aside from being constitutionally unnecessary, are also burdensome, impractical, and no more likely to effect notice than the methods actually employed by the State.

In Arkansas, approximately 18,000 parcels of delinquent real estate are certified annually. Tsann Kuen Enterprises Co. v. Campbell, 335 Ark. 110, 119–120, 129 S. W. 3d 822, 828 (2003). Under the Court’s rule, the State will bear the burden of locating thousands of delinquent property owners. These administrative burdens are not compelled by the Due Process Clause. See Mullane, supra, at 313–314; Tulsa Professional Collection Services, Inc., 485 U. S., at 489–490 (stating that constitutionally sufficient notice “need not be inefficient or burdensome”). Here, Arkansas has determined that its law requiring property owners to maintain a current address with the state taxing authority, in conjunction with its authorization to send property notices to the record address, is an efficient and fair way to administer its tax collection system. The Court’s decision today forecloses such a reasonable system and burdens the State with inefficiencies caused by delinquent taxpayers.

Moreover, the Court’s proposed methods are no more reasonably calculated to achieve notice than the methods employed by the State here. Regular mail is hardly foolproof; indeed, it is arguably less effective than certified mail. Certified mail is tracked, delivery attempts are recorded, actual delivery is logged, and notices are posted to alert someone at the residence that certified mail is being held at a local post office. By creating a record, these features give parties grounds for defending or challenging notice. By contrast, regular mail is untraceable; there is no record of either delivery or receipt. Had the State used regular mail, petitioner would presumably argue that it should have sent notice by certified mail because it creates a paper trail.⁶

The Court itself recognizes the deficiencies of its proposed methods. It acknowledges that “[f]ollowing up with regular mail might … increase the chances of actual notice”; “occupants who ignored certified mail notice slips … might scrawl the owner’s new address on the notice packet,” ante, at 12; and “a letter addressed to [occupant] might be opened and read,” ante, at 14 (emphasis added). Nevertheless, the Court justifies its redrafting of Arkansas’ notice statute on the ground that “[its] approach[es] would increase the likelihood that the owner would be notified that he was about to lose his property … .” Ibid. That, however, is not the test; indeed, we rejected such reasoning in Dusenbery. See 534 U. S., at 171 (rejecting the argument that “the FBI’s notice was constitutionally flawed because it was ‘substantially less likely to bring home notice’ than a feasible substitute” (citations omitted)).

The Court’s suggestion that Arkansas post notice is similarly unavailing. The State’s records are organized by legal description, not address, which makes the prospect of physically locating tens of thousands of properties every year, and posting notice on each, impractical. See Tsann Kuen Enterprises Co., supra, at 119–120, 129 S. W. 3d, at 828. Also, this Court has previously concluded that posting is an inherently unreliable method of notice. See Greene v. Lindsey, 456 U. S. 444, 453–454 (1982) .

Similarly, addressing the mail to “occupant,” see ante, at 13, is no more reasonably calculated to reach petitioner. It is sheer speculation to assume, as the Court does, that although “[o]ccupants . . . might disregard a certified mail slip … , a letter addressed to them (even as ‘occupant’) might be opened and read.” Ante, at 14. It is at least as likely that an occupant who receives generically addressed mail will discard it as junk mail.

III

If “title to property should not depend on [factual] vagaries,” Dusenberry, supra, at 171, then certainly it cannot turn on “wrinkle[s],” ante, at 5, caused by a property owner’s own failure to be a prudent ward of his interests. The meaning of the Constitution should not turn on the antics of tax evaders and scofflaws. Nor is the self-created conundrum in which petitioner finds himself a legitimate ground for imposing additional constitutional obligations on the State. The State’s attempts to notify petitioner by certified mail at the address that he provided and, additionally, by publishing notice in a local newspaper satisfy due process. Accordingly, I would affirm the judgment of the Arkansas Supreme Court.

Notes

1 Though the Court posits that “there is no record evidence that notices of attempted delivery were left at 717 North Bryan Street,” ante, at 12, the postal carrier was required to leave notice at the address at each delivery attempt indicating that delivery of certified mail had been attempted and that the mail could be retrieved at the local post office. See United States Postal Operations Manual §813.25 (July 2005), http://www.nalc.org/depart/can/pdf/manuals/pom/pomc8.pdf (all Internet materials as visited Apr. 21, 2006, and available in Clerk of Court’s case file) (“The carrier must leave a notice of arrival on Form 3849 if the carrier cannot deliver the certifiable article for any reason”).

2 The Court found inadequate the State’s attempt at notice by publication, as if that were the State’s sole method for effectuating notice, see ante, at 16. But the State plainly used it here as a secondary method of notice.

3 The issue is not, as the Court maintains, whether the current occupant is “charged with acting as the owner’s agent.” Ante, at 12. Rather, the issue is whether petitioner discharged his own duty to guard his interests.

4 The Postal Service uses “Moved, Left No Address” to indicate that the “[A]ddressee moved and filed no change-of-address order,” and “Not Deliverable as Addressed—Unable to Forward” to indicate that the mail is “undeliverable at address given; no change-of-address order on file; forwarding order expired.” DMM §507, Exh. 1.4.1.

5 The Court’s “storm drain” hypothetical, ante, at 7–8, presents the harder question of when notice is sent—at the precise moment the Commissioner places the mail in the postal carrier’s hand or the split second later when he observes the departing carrier drop the mail down the storm drain. That more difficult question is not before us in this case because Arkansas learned long after the fact that its attempts had been unsuccessful.

6 Interestingly, the Court stops short of saddling the State with the other steps that petitioner argues a State should take any time the interested party fails to claim letters mailed to his record address, see ante, at 14, namely searching state tax records, the phone-book, the Internet, department of motor vehicle records, or voting rolls, contacting his employer, or employing debt collectors. Here, the Court reasons that because of the context—the fact that the letter was returned merely “unclaimed” and petitioner had a duty to maintain a current address—the State is not required to go as far as petitioner urges. Ibid. Though the methods proposed by petitioner are severely flawed (for instance, the commonality of his surname “Jones” calls into question the fruitfulness of Internet and phone-book searches), there is no principled basis for the Court’s conclusion that petitioner’s other proposed methods would “impos[e] burdens on the State significantly greater than the several relatively easy options outlined [by the Court].”


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Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980)

SUPREME COURT OF THE UNITED STATES

PRUNEYARD SHOPPING CENTER ET AL.

v.

ROBINS ET AL.

APPEAL FROM THE SUPREME COURT OF CALIFORNIA.

No. 79-289.

Argued: March 18, 1980

Decided: June 9, 1980

PAMELA GELLER, WASHINGTON TIMES: BORDERLINE OBAMA

Judge Susan R. Bolton has no more authority to preside over this case than do you

The Myth of a Conservative Court and Why Liberals Peddle It

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