Caseflicks

Court of Appeals for the Ninth Circuit • 2009

Moss v. U.S. Secret Service

572 F.3d 962 | 2009 U.S. App. LEXIS 15694

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Takeaway

In short, this case applies Twombly and Iqbal to a Bivens viewpoint-discrimination claim: unequal treatment alone did not plausibly show that Secret Service Agents acted to suppress an anti-presidential message, but the plaintiffs were allowed to amend, and factual summary-judgment issues could not be reviewed interlocutorily.

Background

In October 2004, President George W. Bush dined at the Jacksonville Inn in Oregon after a campaign appearance. About 200 anti-Bush demonstrators assembled on the sidewalk directly in front of the Inn, while a pro-Bush group demonstrated one block west. The anti-Bush group was peaceful, though its chants could be heard on the Inn’s open-air patio where the President was dining.

Secret Service Agents Tim Wood and Rob Savage directed state and local officers to clear the block containing the anti-Bush demonstration and move all persons east of Fourth Street, explaining that the area had to be cleared so no one would be within handgun or explosive range of the President. Local police ultimately forced the anti-Bush group farther away, divided and confined the demonstrators, and allegedly used clubs, pepper-spray projectiles, and physical force. The pro-Bush group was permitted to remain where it was. Inn guests and diners also remained without security screening.

The plaintiffs brought a Bivens action alleging, among other claims, that the Agents discriminated against them because of their anti-Bush viewpoint. The Agents moved to dismiss on qualified-immunity grounds and alternatively sought summary judgment supported by their own declarations. The district court stayed discovery, treated the motion as a Rule 12(b)(6) motion rather than deciding disputed facts on summary judgment, and denied dismissal of the First Amendment claim against the Agents. The Agents took an interlocutory appeal.

Issues

Issue #1

Whether the amended complaint plausibly alleged that the Secret Service Agents violated the plaintiffs’ First Amendment rights through viewpoint discrimination.

Holding

No. The complaint did not plead enough nonconclusory factual matter to make it plausible that the Agents ordered the protest’s relocation because of its anti-Bush message.

Reasoning

A First Amendment viewpoint-discrimination claim required the plaintiffs to show that the Agents acted because of, rather than merely in spite of, the anti-Bush viewpoint. Under Twombly and Iqbal, a court does not accept as true bare assertions of unlawful motive or conclusory assertions that officials acted under a secret policy of suppressing criticism of the President. The complaint therefore needed factual content permitting a reasonable inference of discriminatory intent.

The plaintiffs’ principal factual allegation was disparate treatment: the anti-Bush group was moved while the pro-Bush group was not. But the pleaded facts indicated that the Agents ordered all persons on the block immediately outside the Inn moved east of Fourth Street, to a location roughly comparable in distance from the Inn to the pro-Bush group’s location west of Third Street. That alleged order established a perimeter around the President rather than plausibly suggesting that the Agents sought to silence criticism.

The complaint alleged that local officers drove the plaintiffs more than three blocks away and used force while doing so. Yet it did not allege facts connecting either Agent Wood or Agent Savage to the officers’ particular implementation of the relocation order. The court could not supply that missing link through unwarranted factual inferences.

The fact that Inn guests and diners were neither removed nor screened did not support an inference of viewpoint discrimination. Those individuals were not engaged in expressive activity and were not similarly situated to demonstrators in public areas outside the Inn. At most, the pleaded facts made discrimination possible; Iqbal requires a plausible entitlement to relief, not mere possibility.

Issue #2

Whether the plaintiffs should receive leave to amend after dismissal of their First Amendment claim.

Holding

Yes. The plaintiffs were entitled to an opportunity to amend their complaint to plead additional factual content meeting the Twombly-Iqbal plausibility standard.

Reasoning

Federal Rule of Civil Procedure 15 directs courts to grant leave to amend freely when justice requires, and Ninth Circuit precedent treats dismissal without leave to amend as improper unless amendment could not cure the defect. The court could not conclude that no possible amendment would state a viable claim.

The plaintiffs filed their amended complaint before Twombly and before Iqbal clarified that the plausibility standard applies generally, including to Bivens claims and qualified-immunity motions. Because those decisions materially changed the pleading analysis applied by the court, fairness warranted allowing the plaintiffs to supplement their allegations with specific facts bearing on the Agents’ alleged motive and involvement.

Issue #3

Whether the Ninth Circuit had interlocutory jurisdiction to review the district court’s deferral of the Agents’ alternative summary-judgment motion.

Holding

No. The court lacked jurisdiction over that part of the appeal because the deferred summary-judgment issues depended on disputed facts and the district court had not subjected the Agents to discovery burdens that would defeat qualified immunity’s protection from suit.

Reasoning

An interlocutory qualified-immunity appeal permits review of legal questions, but it does not permit an appellate court to resolve evidence-sufficiency disputes or decide an official’s factual defense that he or she “didn’t do it.” The Agents’ request, including Wood’s assertion that he had no role in establishing the security perimeter, depended on contested facts that the plaintiffs had not been able to investigate because discovery had been stayed.

The district court did not deny the Agents the protection that qualified immunity provides against burdensome pretrial litigation. It promptly decided their Rule 12(b)(6) qualified-immunity defense, deferred only the fact-dependent summary-judgment portion, and stayed all discovery while the motion to dismiss was resolved. No discovery order compelled the Agents to endure broad or even limited discovery.

The Agents could not use an interlocutory appeal to obtain a merits ruling on their declarations while preventing the plaintiffs from taking discovery necessary to test those declarations. Because the order merely deferred resolution of factual issues and did not effectively deprive the Agents of immunity from suit, it was not an immediately appealable collateral order.