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Tuesday, August 25, 2009

More Iqbal: What's a plaintiff to do?

I am trying to put together an essay for a symposium on Iqbal for Lewis & Clark Law Review and am searching for a hook. I think I found it (finally) in last month's decision by the Ninth Circuit in Moss v. U.S. Secret Service.

The plaintiffs were part of a group of anti-Bush protesters who were moved away from the sidewalk directly outside and across the street from an inn where the President was eating (the order to move came from the Secret Service, although the actual moving was carried out by local police). The anti-Bush protesters were to be pushed a block east (they actually were pushed more than two blocks away, as well as subject to some rough policing). Pro-Bush counter-protesters, who had been a block west of the inn, were not made to move.

The plaintiffs brought First Amendment claims against the two agents on the scene, the former director of the Secret Service, and the Service itself (OK, that last one just shows the plaintiffs' lawyer did not entirely know what he was doing). The basic claims were that the plaintiffs were moved because they were presenting an anti-Bush viewpoint, consistent with a sub rosa Secret Service policy of suppressing speech critical of the President.

After the jump, take a look at Iqbal in action in a fairly straightforward Bivens action. It's not pretty.

1) The court followed the two-step approach described in Iqbal: a) Disregard (or at least not accord a presumption of truth to) conclusory allegation and b) Look at the remaining allegations to determine whether they "plausibly" give rise to an entitlement to relief, purportedly by accepting them as true and according reasonable inferences in the pleader's favor.

The court thus disregarded as bald and conclusory the allegations that the on-the-scene agents acted with an impermissible viewpoint-discriminatory motive and the allegations of a discriminatory policy in the agency.

This presents the first problem for the plaintiffs: What facts can they plead as to state of mind at this point, without the benefit of discovery? How can they know what was in the agents' minds until they have had a chance to depose them?* I suppose they might use FOIA to find out about formal Service policies regarding protesters. But the allegation was about a sub rosa policy--in other words, an agency-wide custom, accepted and enforced informally, having the force of law but without being formally established. No FOIA request is going to turn that up. Perhaps allegations about other examples of Service treatment of protesters would lend factual support. But it also would require that superiors knew about those other incidents--again, impossible to allege (in an acceptably non-conclusory manner) without discovery.

2) The court then looked to the remaining allegations and (surprise!) found they did not show a plausible violation. The court considered several distinct allegations. What is noteworthy is how unwilling the court was to draw inferences from these facts in favor of plaintiffs.

a) Only the anti-Bush protesters were moved. But, the court said, the police were ordered simply to move them to a distance equidistant from the Inn as where the pro-Bush protesters already were standing. So the end result (at least of the agents' orders) was pro- and anti-Bush protesters were one block over from the Inn (on opposite sides). Two problems. One is the counter-factual--what if it had been the pro-Bush demonstrators directly in front of the Inn--would they have been moved? We don't know; but is it a reasonable inference (looked at in the light most favorable to the plaintiff) that they would not have been? The other is that the fact that we had a viewpoint-neutral outcome (everyone equidistant from the Inn) does not mean that no viewpoint discrimination occurred--anti-Bush protesters still were moved and a plausible reason is it was because they were anti-Bush protesters.

b) Relatedly, the court insists that if the real purpose of moving the protesters was to suppress the anti-Bush message, the agents would have moved them more than a block away, to where they could not be heard. Hmm; I guess the court never has heard of pretext. It seems to me it is at least potentially a violation (certainly sufficient to withstand a 12(b)(6) motion) for government officers to move a group of speakers, because of their speech, out of the best speaking position and into a lesser one. Even if they could still be heard, they are further away, cannot be seen, and their expression has less impact because of that distance.

c) Plaintiffs alleged that diners and Inn guests were permitted to remain in close proximity to the President without security screening. But, the court said, that allows no inference about the motive behind moving the anti-Bush crowd, which only can be given meaning by reference to the pro-Bush protesters, not the non-protesters in the Inn. Again, I guess the court never heard of pretext. The stated reason for moving the protesters away from in front of the Inn was to keep them out of "firearms and explosives range" of the President. But that reason is belied by the fact that people inside the Inn remained within range of the President without any screening. This at least allows the inference that the concern was not really about firearms and explosives, but something else. And this gets us back to only the anti-Bushies being moved. If the firearms concerns fall away (as plausibly suggested by the non-screening of diners), we are left with the the fact that the antis were moved and there is an inference that the stated reason was not the actual reason. If they got to the spot first, there has to be some reason for moving them. What other reason is there? It is not a legitimate (much less substantial or compelling) government interest to keep the expressive marketplace balanced by making sure both sides are a block away, so that could not be a neutral justification. If the antis got to their spot first, there must be some reason

d) Plaintiffs alleged that they were moved by local police more than a block and subject to abusive police tactics. But these allegations involve local police (who were not named as defendants) and do not mention the Secret Service or the two agents. This seems right to me.

The point of all this is to show the discretion that Iqbal gives courts to ignore the ordinary admonition to draw all inferences in favor of the non-movant/plaintiff. This is where courts really have power in the context of motions to dismiss--in the inferences they draw (or don't draw) in reviewing the complaint and deciding what is or is not plausible based on the facts pled. None of the inferences I have argued for here are essential or necessary. But the inferences I have suggested seem to make a First Amendment violation plausible--certainly enough to get by 12(b)(6). Again, we come back to the question--what more could these plaintiffs have done? And how are they ever to get their claims before a jury?

The court did grant plaintiffs leave to amend, for the stated reason that the complaint was filed prior to Twombly and Iqbal. But as courts start finding more and more complaints factually deficient under Twombly and Iqbal, this is going to become an increasingly common practice.

Interesting stuff. In addition to writing about the case, I may assign the complaint (which, at 92 paragraphs, is reasonably short) as an example for Civ Pro.

  • The defendants have vigorously, and thus far successfully, resisted all discovery. This created an interesting secondary issue on appeal, regarding immediate appealability of the trial judge's decision to delay ruling on summary judgment in response to a Rule 56(f) affidavit.

Posted by Howard Wasserman on August 25, 2009 at 09:00 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink


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Because you can't sue a federal agency for damages for constitutional violations. Ultimately it does not matter, since the attorneys sued everyone, including the appropriate individuals, so all the right parties are in the case.

Posted by: Howard Wasserman | Sep 13, 2009 3:17:03 PM

I'm a plaintiff and lay person involved in the case. Why do you say our attorney didn't know what he was doing by naming the Secret Service as defendants? If we are trying to show a sub rosa policy of viewpoint discrimination, wouldn't we try to name the agency as a whole?

Posted by: shelley elkovich | Sep 13, 2009 3:11:41 PM

The real question seems to be whether protesters should be allowed to protest across the street from the president. If they should, absent some reasonable suspicion, then allegations of viewpoint discrimination should be irrelevant, and the case should go forward without any need to refer to them as "antis". If they should not, then it was proper to move them and the judge should not draw any inference from the fact that "they were there first" -- otherwise every single time protesters are limited in time/place the Secret Service will be subject to discovery/ fishing expeditions. Let's face it, most protesters have a different viewpoint from the officials they are protesting and will allege in a conclusory manner that they were moved because of their viewpoint.

Posted by: anon | Aug 25, 2009 11:07:42 PM

IMHO, Moss is an outlier. In Moss, the Court picked apart the individual allegations then held that each one in particular failed to raise a "plausible" claim, ignoring the basic rule that the allegations in a complaint must be viewed in their totality. IIRC, there's a Fifth Circuit case holding precisely that Iqbal didn't overrule the 'totality' rule.

The Seventh Circuit (at least Posner & Easterbrook) has taken a more narrow view of Iqbal, with Posner wondering aloud if it's even applicable to most cases. See my post here: http://bit.ly/5uLJQ

Posted by: Max Kennerly | Aug 25, 2009 9:38:10 AM

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