The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
DENYING THE DEFENDANTS'RENEWED MOTION FOR SUMMARY JUDGMENT
This matter comes before the court on the defendants' renewed motion for summary judgment. The plaintiff commenced this action nearly twenty years ago, alleging that inspectors employed by the United States Postal Service ("USPS") violated his First Amendment rights by inducing the United States Attorney's Office to bring criminal charges against him in retaliation for speaking out against USPS policies. In addition, the plaintiff brings an action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)(1), 2671-2680, alleging malicious prosecution. The defendants -- the United States and five postal inspectors -- move for summary judgment, asserting that the plaintiff cannot establish that the government lacked probable cause to prosecute him, as he must to prevail on his claims. The plaintiff opposes the motion, contending that a reasonable factfinder could conclude that there was no probable cause to prosecute him. Because the court concludes that there is a genuine issue of material fact as to whether the government lacked probable cause to prosecute him, the court denies the defendants' renewed motion for summary judgment.
The factual history of this case dates back to the mid-1980s, when the plaintiff served as President and Chief Executive Officer of Recognition Equipment, Inc. ("REI"), a company specializing in optical scanning technology. Moore v. Hartman, 571 F.3d 62, 64 (D.C. Cir. 2009). REI urged the USPS to purchase REI's multi-line optical character readers ("MLOCRs"), devices capable of mechanically interpreting multiple lines of text on a piece of mail. Id. Many individuals within the USPS advocated for the use of MLOCRs, while many others advocated adding another four digits to the existing five-digit zip codes, which would have required the use of scanners capable of scanning only one line of text on a piece of mail (single-line optical character readers, or "SLOCRs"). Id. The plaintiff was heavily involved in the debate over MLOCRs versus SLOCRs, launching an intensive media and lobbying campaign in support of MLOCRs. Id. The campaign was successful: after several members of Congress endorsed the use of MLOCRs, the USPS Board of Governors reversed its initial position favoring the use of SLOCRs and instead voted in favor of using MLOCRs. Id.
Shortly thereafter, the defendants, postal inspectors for the USPS, commenced an investigation into the activities of the plaintiff and others, whom the inspectors suspected were engaged in a scheme to defraud the USPS. Id. Specifically, the investigation was focused on Peter Voss, a member of the USPS Board of Governors; REI; and Gnau & Associates, Inc. ("GAI"), a consulting firm that REI had hired on Voss's recommendation. Id. Through their investigation, the postal inspectors learned that Voss was receiving illegal payments from John Gnau, the chairman of GAI. Id. The payments were made to compensate Voss for referring REI to GAI. Id. Voss, Gnau and another GAI official, Michael Marcus, ultimately pleaded guilty for their involvement in the conspiracy, and a third GAI official, William Spartin, entered into a cooperation agreement with the government. See United States v. Recognition Equip., Inc., 725 F. Supp. 587, 589 (D.D.C. 1989).
In October 1988, a grand jury returned an indictment against the plaintiff, REI and REI's vice president, charging them with conspiracy to defraud the United States, theft, receiving stolen property and mail and wire fraud. Id. at 587. The matter proceeded to trial, but at the close of the government's case, the court granted the plaintiff's motion for judgment of acquittal, ruling that there was insufficient evidence for the jury to find beyond a reasonable doubt that the plaintiff was aware of the conspiracy. Id. at 602.
Following his acquittal in the criminal case, the plaintiff brought a civil suit against the postal inspectors and the Assistant United States Attorney who had prosecuted the case, contending that the inspectors had induced his prosecution in retaliation for his criticism of the USPS. See generally Compl. After nearly two decades of litigation that, as the Supreme Court has noted, "portend[s] another Jarndyce v. Jarndyce," Hartman v. Moore, 547 U.S. 250, 256 (2006), two claims out of the original five remain: a Bivens*fn2 claim alleging that the postal inspectors committed retaliatory prosecution in violation of the plaintiff's First Amendment rights, and a malicious prosecution claim against the inspectors brought under the FTCA. Moore, 571 F.3d at 63.
In 2003, the court*fn3 denied the defendants' motion for summary judgment on the plaintiff's Bivens retaliatory prosecution claim. See Order (Aug. 5, 2003). The Circuit affirmed, concluding that a reasonable jury could find that the criminal case against the plaintiff would not have been brought absent the defendants' retaliatory motive. See generally Moore v. Hartman, 388 F.3d 871 (D.C. Cir. 2004). The Supreme Court reversed, resolving a Circuit split and holding that to prevail on his Bivens retaliatory prosecution claim, the plaintiff would be required to prove not only that the defendants possessed retaliatory motive, but also that the prosecutor lacked probable cause to bring the charges against the plaintiff. Hartman, 547 U.S. at 265-66. Because the Supreme Court decision established that probable cause is "a decisive element of the plaintiff's claims," Mem. Op. (Mar. 27, 2007) at 6, and because the plaintiff bears the burden of proving its absence, the court denied without prejudice the defendants' renewed motion for summary judgment and granted the plaintiffs' motion for additional discovery, see generally id.
Following the additional period of discovery, the defendants again moved for summary judgment, arguing that the plaintiff cannot prevail on either of his remaining claims because he is unable to show an absence of probable cause. See generally Defs.' Mot. for Summ. J. (Oct. 15, 2007). In an August 2008 opinion, the court granted the defendants' motion, holding that "[a] valid indictment conclusively determines the existence of probable cause to bring charges" unless the plaintiff "allege[s] misconduct or irregularities in the grand jury proceeding sufficient to call into question the validity of the indictment," Mem. Op. (Aug. ...