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Home » Blog » Malicious Prosecution

Malicious Prosecution


Case:  Kenneth J. Mynatt v. National Treasury Employees Union, Chapter 39 Et Al.

Facts:  Plaintiff sued Defendants for malicious prosecution after a criminal charge against Plaintiff prompted by Defendants was “retired” and then dismissed. Defendants moved to dismiss the suit, contending that the retirement of the criminal case was not a termination in the Plaintiff’s favor on the merits, which is an essential element of malicious prosecution.

Appellate Decision:  The intermediate court reversed the dismissal, holding that nothing in the record proved as a matter of law that the case was not retired and ultimately dismissed due to a lack of evidence.

Review Granted:  January 19, 2022.

Prediction:  Ben thinks the Supreme Court will agree with the intermediate court that the dismissal should be reversed. As the intermediate court recognized, a criminal case can be retired either with or without preconditions before subsequent dismissal. If there are substantive conditions (such as payment of restitution), that would likely not constitute a favorable termination on the merits of the case. But if there were no conditions and the case was dismissed merely upon the passage of time, that would be functionally no different than a dismissal notwithstanding the delay. Here, there does not appear to be any evidence the dismissal was contingent on any conditions, so the Plaintiff should be permitted to pursue a malicious prosecution claim as if the criminal case was dismissed without the intervening retirement.

David disagrees and thinks a “slow” dismissal by a retirement of the case is not an adjudication in favor of the accused thus barring a malicious prosecution suit. The Court may take this opportunity to condemn the practice of “retiring” criminal cases as an unacceptable “back burner” disposition.