HARTMAN et al. v. MOORE

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250 OCTOBER TERM, 2005
Syllabus
HARTMAN et al. v. MOORE
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
Seeking to convince the United States Postal Service to incorporate multi
line optical scanning technology, a company (REI), which manufactured
multiline optical readers, commenced an extensive lobbying and public
relations campaign. In the end, the Postal Service begrudgingly em
braced the multiline technology, but awarded the lucrative equipment
contract to a competing firm. Subsequently, Postal Service inspectors
investigated REI and its chief executive, respondent Moore, for their
alleged involvement in a consulting-firm kickback scandal and for their
alleged improper role in the search for a new Postmaster General.
Urged at least in part by the inspectors to bring criminal charges, a
federal prosecutor tried REI and its top officials. But, finding a com
plete lack of evidence connecting them to any wrongdoing, the District
Court acquitted the defendants. Moore then filed an action under
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, against
the federal prosecutor and petitioner postal inspectors, arguing, as rele
vant here, that they had engineered the prosecution in retaliation for
his lobbying efforts. The claims against the prosecutor were dismissed
in accordance with the absolute immunity for prosecutorial judgment.
Ultimately, the entire suit was dismissed, but the Court of Appeals rein
stated the retaliatory-prosecution claim against the inspectors. Back
in District Court, the inspectors moved for summary judgment, claiming
that because the underlying criminal charges were supported by proba
ble cause they were entitled to qualified immunity. The District Court
denied the motion, and the Court of Appeals affirmed.
Held: A plaintiff in a retaliatory-prosecution action must plead and show
the absence of probable cause for pressing the underlying criminal
charges. Pp. 256–266.
(a) As a general matter, this Court has held that the First Amend
ment prohibits government officials from subjecting an individual to
retaliatory actions, including criminal prosecutions, for speaking out.
Crawford-El v. Britton, 523 U. S. 574, 592. When nonretaliatory
grounds are insufficient to provoke the adverse consequences, retalia
tion is subject to recovery as the but-for cause of official injurious action
offending the Constitution, see, e. g., id., at 593, and a vengeful federal
officer is subject to damages under Bivens. P. 256.

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Syllabus
(b) Although a Bivens (or 42 U. S. C. § 1983) plaintiff must show a
causal connection between a defendant’s retaliatory animus and subse
quent injury in any retaliation action, the need to demonstrate causation
in the retaliatory-prosecution context presents an additional difficulty
which can be overcome by a showing of the absence of probable cause.
In an ordinary retaliation case, the evidence of motive and injury are
sufficient for a circumstantial demonstration that the one caused the
other, and the causation is understood to be but-for causation, without
which the adverse action would not have been taken. When the
claimed retaliation is, however, a criminal charge, the action will differ
in two ways. First, evidence showing whether there was probable
cause for the criminal charge will be highly valuable circumstantial evi
dence to prove or disprove retaliatory causation. Demonstrating a lack
of probable cause will tend to reinforce the retaliation evidence and
show that retaliation was the but-for basis for instigating the prosecu
tion, while establishing the existence of probable cause will suggest that
the prosecution would have occurred even without a retaliatory motive.
Second, since the defendant in a retaliatory-prosecution case will not be
the prosecutor, who has immunity, but an official who allegedly influ
enced the prosecutorial decision, the causal connection required is not
between the retaliatory animus of one person and that person’s own
injurious action, as it is in the ordinary retaliation case, but between
the retaliatory animus of one person and the adverse action of another.
Because evidence of an inspector’s animus does not necessarily show
that the inspector induced the prosecutor to act when he would not have
pressed charges otherwise and because of the longstanding presumption
of regularity accorded prosecutorial decisionmaking, a showing of the
absence of probable cause is needed to bridge the gap between the non
prosecuting government agent’s retaliatory motive and the prosecutor’s
injurious action and to rebut the presumption. Pp. 256–264.
(c) 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 deci
sion to go forward. P. 265.
388 F. 3d 871, reversed and remanded.
Souter, J., delivered the opinion of the Court, in which Stevens,
Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed a dissent

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252 HARTMAN v. MOORE
Opinion of the Court
ing opinion, in which Breyer, J., joined, post, p. 266. Roberts, C. J., and
Alito, J., took no part in the consideration or decision of the case.
Deputy Solicitor General Kneedler argued the cause for
petitioners. With him on the brief were Solicitor General
Clement, Assistant Attorney General Keisler, Dan Him
melfarb, Barbara L. Herwig, Matthew M. Collette, Steph
anie R. Marcus, and Richard Montague.
Patrick F. McCartan argued the cause for respondent.
With him on the brief were Paul Michael Pohl and Chris
tian G. Vergonis.*
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.
I
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 inter
preting 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
*Richard Ruda and James I. Crowley filed a brief for the National
League of Cities et al. as amici curiae urging reversal.

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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 com
mittees, 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 Serv
ice made what it called a “mid-course correction” and em
braced 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 pay
ment of kickbacks by GAI to Governor Voss for Voss’s rec
ommendations 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 wrong
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’ ”).

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doing, 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 defend
ants’ 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 prosecu
tor and the five postal inspectors who are petitioners here (a
sixth having died). His complaint raised five causes of ac
tion, 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
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.” Carl
son v. Green, 446 U. S. 14, 18 (1980). Though more limited in some re
spects 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 & Mor
rison, What Kind of Immunity? Federal Officers, State Criminal Law, and
the Supremacy Clause, 112 Yale 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”).

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dismissed the claims against the Assistant United States At
torney in accordance with the absolute immunity for prose
cutorial 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 rein
state 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 in
volved, 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 suc
ceeded 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 be
cause 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 requir
ing 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
3 Moore and his wife had originally filed this complaint jointly. Her
claims were dismissed for lack of standing.

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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.
1138 (2005), to resolve the Circuit split and now reverse.
II
Official reprisal for protected speech “offends the Constitu
tion [because] it threatens to inhibit exercise of the protected
right,” Crawford-El v. Britton, 523 U. S. 574, 588, n. 10
(1998), and the law is settled that as a general matter the
First Amendment prohibits government officials from sub
jecting an individual to retaliatory actions, including crimi
nal prosecutions, for speaking out, id., at 592; see also Perry
v. Sindermann, 408 U. S. 593, 597 (1972) (noting that the gov
ernment 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 non
retaliatory grounds are in fact insufficient to provoke the
adverse consequences, we have held that retaliation is sub
ject to recovery as the but-for cause of official action offend
ing 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
4 See 2 C. Dickens, Bleak House 85 (1853).

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a plaintiff in a retaliatory-prosecution action must plead and
show the absence of probable cause for pressing the underly
ing criminal charges.5
A
The inspectors argue on two fronts that absence of proba
ble 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 disrup
tion 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) (allega
tions 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
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 de
fense; 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).

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first, for the inspectors believe that the traditional tort of
malicious prosecution tells us what the objective require
ment 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 con
stitutional tort. See Heck v. Humphrey, 512 U. S. 477, 483–
485, and 484, n. 4 (1994).
B
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 vio
lations, 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

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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
C
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 in
spectors. 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 ordi
nary retaliation claims, where the government agent alleg
edly 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., Pick
ering 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
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); Kee
nan 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).

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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 be
tween 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 im
proper 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 facie showing 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 be
tween 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 any
way. 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

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will have the same opportunity to respond to a prima facie
case by showing that the action would have been taken any
way, independently of any retaliatory animus. What is dif
ferent 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. Dem
onstrating that there was no probable cause for the underly
ing criminal charge will tend to reinforce the retaliation evi
dence 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 evi
dentiary 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 be
tween 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
7 Indeed, even though the Court of Appeals in this case held that plain
tiffs 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 pos
sible, 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”).

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prosecution will not be brought against the prosecutor, who
is absolutely immune from liability for the decision to prose
cute, Imbler v. Pachtman, 424 U. S. 409, 431 (1976).8 In
stead, the defendant will be a nonprosecutor, 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 suc
cessful retaliatory inducement to prosecute.9 The conse
quence is that a plaintiff like Moore must show that the non
prosecuting 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 per
son’s own injurious action, but between the retaliatory ani
mus of one person and the action of another. See 213 F. 3d,
at 710 (“In order to find that a defendant procured a prosecu
tion, the plaintiff must establish ‘a chain of causation’ linking
the defendant’s actions with the initiation of criminal pro
ceedings”); see also Barts v. Joyner, 865 F. 2d 1187, 1195
(CA11 1989) (plaintiff seeking damages incident to her crimi
nal prosecution would have to show that the police, who al
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 prac
tices). 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 viola
tion is not before us.

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legedly acted in violation of law in securing her arrest, un
duly pressured or deceived prosecutors); Dellums v. Powell,
566 F. 2d 167, 192–193 (CADC 1977) (where allegation of mis
conduct 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 presump
tion 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 neces
sarily show that the inspector induced the action of a pros
ecutor 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 prosecu
torial decisionmaking. See Reno v. American-Arab Anti-
D iscr imination 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 dis
card, 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 evi
dence must link the allegedly retaliatory official to a prosecu
tor whose action has injured the plaintiff. The connection,
to be alleged and shown, is the absence of probable cause.

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264 HARTMAN v. MOORE
Opinion of the Court
It would be open to us, of course, to give no special promi
nence 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 retal
iatory 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 superin
tendent, who allegedly bore the retaliatory animus). In
fact, though, these examples are likely to be rare and conse
quently 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 prosecu
tor 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
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, 469, n. 3 (1996) (leaving
open the question “whether a [criminal] defendant must satisfy the simi
larly situated requirement in a case ‘involving direct admissions by [prose
cutors] of discriminatory purpose’ ” (brackets in original)). But this
would seem a little like proposing that retirement plans include the pos
sibility 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.

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265 Cite as: 547 U. S. 250 (2006)
Opinion of the Court
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 dis
positive: 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 mo
tive on the part of an official urging prosecution combined
with an absence of probable cause supporting the prosecu
tor’s decision to go forward are reasonable grounds to sus
pend the presumption of regularity behind the charging deci
sion, 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 facie inference 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 show
ing 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 prose
cution 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 ab
sence of probable cause will have high probative force, and
can be made mandatory with little or no added cost, it makes

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266 HARTMAN v. MOORE
Ginsburg, J., dissenting
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.
Justice Ginsburg, with whom Justice Breyer joins,
dissenting.
The Court of Appeals, reviewing the record so far made,
determined that “[t]he evidence of retaliatory motive [came]
close to the proverbial smoking gun.” 388 F. 3d 871, 884
(CADC 2004). The record also indicated that the postal in
spectors engaged in “unusual prodding,” strenuously urging
a reluctant U. S. Attorney’s Office to press charges against
Moore. Ibid. 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. Id., at 878.
Recognizing that this case is now directed against the in
stigating postal inspectors alone, not the prosecutor, I would
not assign to the plaintiff the burden of pleading and proving
the absence of probable cause for the prosecution. Instead,
in agreement with the Court of Appeals, I would assign to
the postal inspectors who urged the prosecution the burden
of showing that, had there been no retaliatory motive and
importuning, the U. S. Attorney’s Office nonetheless would
have pursued the case.
Under the Court’s proof burden allocation, which saddles
plaintiff—the alleged victim—with the burden to plead and
prove lack of probable cause, only entirely “baseless prosecu

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267 Cite as: 547 U. S. 250 (2006)
Ginsburg, J., dissenting
tions” would be checked. Id., at 879. So long as the retali
ators present evidence barely sufficient to establish probable
cause and persuade a prosecutor to act on their thin informa
tion, 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 rep
utational loss as well, and neither loss would be compensable
under federal law. Under the D. C. Circuit’s more speech
protective formulation, “[a] Bivens [v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388 (1971),] 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.”
Id., at 881. That such situations “are likely to be rare,” it
seems to me, does not warrant “structuring a cause of ac
tion,” ante, at 264, that precludes relief when they do arise.
For reasons fully developed in the D. C. Circuit’s opinion,
I conclude that, in full accord with this Court’s decision in
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 287
(1977), the Court of Appeals’ decision strikes the proper bal
ance. I would, therefore, affirm the Circuit’s judgment.