 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 6, 2012              Decided January 15, 2013

                         No. 10-5334

     WILLIAM G. MOORE, JR. AND BLANCHE K. MOORE,
                     APPELLEES

                               v.

                 MICHAEL HARTMAN, ET AL.,
                       APPELLANTS

                      ANTONIO SANTOS,
                         APPELLEE

              PAMELA JEAN SOTHAN-ROBBINS,
                       APPELLANT

                UNITED STATES OF AMERICA,
                        APPELLEE


          On Remand from the U.S. Supreme Court


     Catherine Y. Hancock, Attorney, U.S. Department of
Justice, argued the cause for appellants. With her on the briefs
were Stuart F. Delery, Acting Assistant Attorney General,
Ronald C. Machen Jr., U.S. Attorney, and Barbara L. Herwig,
Attorney. Michael P. Abate and Richard Montague, Attorneys,
U.S. Department of Justice, entered appearances.
                                2

    Paul Michael Pohl argued the cause for appellees. With
him on the briefs were Christian G. Vergonis and Charles T.
Kotuby, Jr.

    Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

    Opinion for the Court filed PER CURIAM.

    Dissenting opinion filed by Circuit Judge KAVANAUGH.

     PER CURIAM: The Supreme Court has directed this court to
determine whether our decision in Moore v. Hartman, 644 F.3d
415 (D.C. Cir. 2011) (“Moore V”), holding that “probable cause
is not an element of the First Amendment right allegedly
violated” in a retaliatory prosecution suit, id. at 423, remains
good law in light of Reichle v. Howard, 132 S. Ct. 2088 (2012).
There, in examining whether the law governing retaliatory
arrest claims was clearly established in the Tenth Circuit in
2006, the Court expressly declined to decide whether the
absence-of-probable-cause requirement identified in Hartman v.
Moore, 547 U.S. 250, 265–66 (2006), is “best read as defining
the scope of the First Amendment right or as simply establishing
a prerequisite for recovery.” Reichle, 132 S. Ct. at 2096 n.6.
Instead, the Court hinged its decision in Reichle on the fact that
Hartman unsettled Tenth Circuit precedent that had conflated
retaliatory arrest and retaliatory prosecution claims. See id. at
2094–96. Because it was uncertain whether the Tenth Circuit’s
retaliatory arrest law remained clearly established, the
defendants in Reichle were entitled to qualified immunity. The
Court in Reichle was thus agnostic on the issue central to our
holding in Moore V.

     Because retaliatory arrest and retaliatory prosecution are
distinct constitutional violations and because the precedent in
this Circuit clearly established in 1988, when the challenged
                               3

conduct by the Postal Inspectors took place, the contours of the
First Amendment right to be free from retaliatory prosecution,
nothing in Reichle changes our conclusion that the absence-of-
probable-cause requirement is not “an element of a First
Amendment retaliation violation.” Moore V, 644 F.3d at 424.
If the Postal Inspectors believe that the Court in Reichle meant
to decide what it refused to decide in Hartman and bring to a
halt this three decades old case involving evidence that, unlike
in Reichle where probable cause was conceded, “comes close to
the proverbial smoking gun,” Moore v. Hartman, 388 F.3d 871,
884 (D.C. Cir. 2004) (“Moore III”), they are free to once again
petition for certiorari and ask the Supreme Court if it wishes to
end this saga.
     KAVANAUGH, Circuit Judge, dissenting: In its recent
decision in Reichle v. Howards, 132 S. Ct. 2088 (2012), the
Supreme Court indicated that it is not clear whether the
absence-of-probable-cause requirement identified in Hartman
v. Moore, 547 U.S. 250, 252 (2006), is “best read as defining
the scope of the First Amendment right or as simply
establishing a prerequisite for recovery.” Reichle, 132 S. Ct.
at 2096 n.6. Because the First Amendment law on this point
is not clear, the defendants in this case cannot be said to have
violated “clearly established” First Amendment law.
Therefore, the defendants are entitled to qualified immunity,
and the suit may not proceed. I respectfully dissent.
