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Tuesday, November 26, 2013

More pleading/qualified immunity

The big news from SCOTUS today was the unexpected totally expected cert. grant on the constitutionality of the contraception mandate. But the Court also granted cert. in Wood v. Moss, which involves qualified immunity and pleading.

The case arises out of a street protest against President Bush, where police and Secret Service agents moved protesters several blocks away from where the President was having dinner, while allowing pro-Bush protesters to remain in place. Two months after Iqbal was decided, the Ninth Circuit found the complaint insufficient, a decision I argued illustrated the negative effects Iqbal was likely to have on civil rights litigation. The plaintiffs were given a chance to replead and a later Ninth Circuit panel  held that the amended complaint sufficiently pled viewpoint discrimination.

That the Court took the case does not bode well, but I suppose I could be surprised.

Posted by Howard Wasserman on November 26, 2013 at 02:05 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink

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They could reverse on the QI question and not reach the pleading issue, I would think.

Posted by: Orin Kerr | Nov 26, 2013 2:20:49 PM

Almost certainly. I'm not too sanguine about what the Court will do on that issue, either. It seems (to me) fairly obvious that you can't treat one set of speakers one way while a completely different speakers uttering the opposite point of view is treated another. But in the absence of case law (and perhaps that these are federal officials and the White House), that will likely turn out not to be enough.

Posted by: Howard Wasserman | Nov 26, 2013 3:38:57 PM

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