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Wednesday, June 27, 2012

Overcoming Iqbal

In the one article I've written about Twiqbal, I examined the potential impact on constitutional and civil rights litigation, with a particular focus on a case out of the Ninth Circuit called Moss v. Secret Service, a § 1983 and Bivens action against Secret Service agents and local police who allegedly moved a group of protesters to an unfavorable position away from a restaurant where President Bush was eating pursuant to White House and Secret Service polic, while leaving a group of Bush supporters in place.

In the article, I criticized a 2009 panel decision dismissing the claim on Iqbal grounds, dismissing several allegations as conclusory (notably allegations of motive and policy) and taking a very crabbed reading of the remaining factual allegations. I argued that this demonstrated the problems with Iqbal, because it was not clear what more the plaintiffs could plead and that the plaintiffs likely would lose without getting past pleading, although the plaintiffs had been granted leave to replead. So much for my predictive power; two months ago, a Ninth Circuit panel held that the Second Amended Complaint was pled sufficiently and remanded the case to the district court to allow it to move forward.

What changed? For one thing, the plaintiffs supported their allegations of a policy with detailed allegations, based on published reports, of past incidents of similar treatment of anti-Bush protesters. They also included a copy of the Presidential Advance Manual (presumably obtained through early discovery), which suggested a White House policy of working with the Secret Service to move protesters. For another, the new complaint clarified that the protesters were moved farther from the inn than the pro-Bush demonstrators. For another, the court was simply more willing to adopt plaintiff-friendly inferences. For example, the first court held that moving the protesters one block away did not plausibly lead to the inference of viewpoint discrimination, because the plaintiffs still could be heard; if the goal was to silence them, they would have been moved even further away. By contrast, the second court concluded that it is a plausible inference that they were moved to somplace from which their speech would be less visible or intelligible.

So what can we conclude about Iqbal from the developments in this case? On the good side, it shows that it is possible for civil rights plaintiffs, given another opportunity, to plead sufficient non-conclusory facts and to survive 12(b)(6). But I want to suggest that, despite the result in this case, Moss better demonstrates the problems with this pleading regime.

First, it shows that a plaintiff's ability to plead non-conclusory facts may depend entirely on circumstance. The plaintiffs were able to plead in the amended pleading because they had public reports of past similar incidents, which supported the inference of a policy. But suppose the prior incidents had not been publicized. Or suppose this case had been the first instance in which that policy had been implemented.

Second, it shows the inherent subjectivity in the analysis. The second panel found several inferences to be plausible that the first panel had not found plausible; these include inferences about the pretextual nature of the agents' stated reasons for moving the protesters and about the significance of the protesters being less visible or intelligible from their new location. I have no great problem with subjectivity generally, since law is rarely, if ever, objective. Having looked at both pleadings and both decisions in Moss, it is hard to tell the difference between them. The only difference between the pleadings is the level of detail as to the policy--but Iqbal is not supposed to be about how much detail, but about the "so what" of the facts included.

Third, it shows that this is not worth the candle. This action was originally filed in 2006; six years later, we are just now finishing pleading and going back to the district court for serious discovery. But everyone has known all along what this case was about, what inferences that the plaintiffs would need the factfinder to draw, and what facts would come out in discovery to indicate viewpoint discriminatory intent. So why spend so much time on the complaint? And a doctrine, such as Iqbal, that forces us to do so is problematic.

Posted by Howard Wasserman on June 27, 2012 at 09:22 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


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But surely you agree that the claim can't survive a motion to dismiss if the plaintiffs won't defend the claim on its own basis.

Posted by: Jim von der Heydt | Jun 28, 2012 11:11:40 AM

I don't think so, because moving you violates the First Amendment, at least if done for improper reasons. The claim isn't worth a lot of money, but that doesn't mean it shouldn't be brought. Much of § 1983 doctrine is built around the idea that the claims may not be worth much money, but we still want the claims brought.

Posted by: Howard Wasserman | Jun 28, 2012 10:00:26 AM

By the way, isn't the idea that some things are "not worth the candle" the whole point of Iqbal? If your injury is that you were moved too far away with excessive force, but you concede that the Secret Service wanted you moved just across the street, without excessive force, isn't it your lawsuit against the Secret Service that's not worth the candle?

Posted by: Jim von der Heydt | Jun 28, 2012 9:08:46 AM

"The new complaint clarified that the protesters were moved farther from the inn than the pro-Bush demonstrators."
This should have been made clear in the first complaint.

"The second court concluded that it is a plausible inference that [the anti-Bush demonstrators] were moved to someplace from which their [anti-Bush] speech would be less visible or intelligible."
But this inference only makes sense in light of the clarified fact just quoted from the new complaint. The first court couldn't coherently draw this inference! If the pro-Bush and anti-Bush protestors were held away at equal distances, then the security explanation applies to both of them using even the dullest of Occam's razors.

To be clear, I think even the equidistant anti-Bush protestors would satisfy Iqbal and Twombly. But then, as they realized on researching the defendants' motions in the first go-round, they would instantly lose under qualified immunity because of the security argument.

Posted by: Jim von der Heydt | Jun 27, 2012 9:40:18 PM

Oops, sorry, I forgot my better idea that the complaint should have alleged that it was the Secret Service's idea to push the anti-Bush protestors way way back. There's no reason (is there?) just to concede before discovery and cross-examination time that that was the idea of the local police alone.

Qualified immunity requires the plaintiff's version of the facts and inferences; all you have to do is state underlying facts without violating Rule 11.

And again, if it *was* the idea of the local police alone, and the Secret Service just wanted the protestors equidistant with the counter-protestors, then the Secret Service almost certainly did nothing wrong and plaintiffs oughta focus on the real villain, Jacksonville, Oregon's Bull Connor wannabe.

Posted by: Jim von der Heydt | Jun 27, 2012 9:30:00 PM

Maybe the way the original complaint pleaded it WOULD have been sufficient, if the plaintiffs had stuck with that theory of the case. Instead, they responded to the motion to dismiss by abandoning that theory of the case (which was, perhaps, not well researched to begin with) in order to make the viewpoint-discrimination argument not properly alleged in the complaint. They panicked, and ended up doing incoherent work.

Since hosting a podcast is so lucrative, and since being a summer associate and the Law Review Submissions Editor at Cleveland State leaves me so much free time, I made some purchases on PACER just now. (Incidentally, you or your editors got the district-court case number wrong -- it's 3045, not 3405. We triple-check these things at Cleveland State.)

You're quite right that in the initial complaint the plaintiffs stated something workable: Defendants were engaged "in the practice of or continuing a pattern and practice of, or requesting and encouraging others to engage in the practice of: Barring and forcing a lawful assembly of people from any area where they have a lawful right to assemble, where there is no reasonable security reason to so bar or force them [...] using excessive force," etc.

Then this happened: docket entry: "Unopposed Motion for Extension of Time to File a Response/Reply to Motion to Dismiss of United States of America as to Official-Capacity Claims for Equitable Relief 68 , Motion to Dismiss Amended Complaint 72 , Motion for Summary Judgment 56 , Motion to Dismiss Defendants Jackson County's and Mike Winters' Motion to Dismiss 53 , Motion to Dismiss 52 , Motion to Dismiss or in the alternative Motion for Summary Judgment 62 . Filed by all plaintiffs. (Wilker, Steven) (Entered: 02/16/2007)" Plaintiffs got snowed under. Ack!

And you can bet the qualified-immunity arguments from the Secret Service were strong. Presidential security? Judges don't like Monday-morning quarterbacking presidential security.

After all the jurisdictional issues are dealt with, the plaintiffs' actual argument in support of the merits of the claim, trying to fend off eleventy-four defendants' briefs, begins on page 29 of the 52-page memo in response. It begins by citing Rosenberger: "Viewpoint discrimination is thus an egregious form of content discrimination." The entire argument then happens in one sentence: "not only have plaintiffs stated claims for viewpoint discrimination, they have put forward facts for which a jury trial is required to determine the merits of these claims." And then the plaintiffs are on to the excessive force claims, which were all properly directed at the cops instead of the Secret Service who gave th eorders.

ALL the substance of the specific argument that follows is again viewpoint discrimination: the Secret Service had "an unwritten policy and practice of discriminating against anti- Bush protesters because of their views."
"Contrary to defendants' assertions, a "time, place, or manner" analysis is inappropriate in this case because the restriction was not content-neutral. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)" The key feature of the Plaintiffs was that they were "speaking out against a public official."
"Any reasonable official in these defendants' positions would know that discriminating against individuals based on their viewpoint is unconstitutional."
"It would be absurd for three high- level federal officials and the chief of a police department to assert that singling out individuals based on the views that they were expressing was reasonable under the Constitution."

The problem with all of this is that the Complaint as initially filed did not plead the facts to go with it. The Complaint as initially filed supported the argument that security was a pretext for suppression of the right to assemble. The response to the motion to dismiss should have stuck with this claim and argued that there was no security reason to remove the protesters. It should have done a 'time, place, and manner' analysis, and said, Look, under that analysis, we win. Instead, in the snarl of qualified-immunity doctrine and jurisdictional disputation, the lawyers switched horses and (to switch metaphors) jerry-rigged a 'viewpoint-discrimination' claim, cantilevering it onto a complaint that was designed for 'freedom of assembly.'

Now maybe this was totally competent in every way, because maybe the Defendants had killer arguments about presidential security that for some reason the Plaintiffs couldn't have foreseen. Qualified immunity, unlike other (mostly)pre-discovery concepts, allows the Defendants to adduce such things in ways Twombly doesn't allow (but of course Iqbal does).
But -- Howard -- even if this lawyering was fully competent, because the original theory of the case turned out unforeseeably to be a loser, your statement that the original complaint should have sufficed is academic at best. The original complaint couldn't do the job *after the Plaintiffs abandoned its core argument*. The facts alleged in that complaint couldn't possibly prevail if the Plaintiffs weren't willing to stand behind them as legally sufficient IN THEIR OWN BRIEFS.

Again, I think the best course was to properly allege viewpoint discrimination out of the gate. Iqbal would have been satisfied if the Plaintiffs had simply alleged that the Secret Service ordered the police to single out anti-Bush protesters. Then they could take depositions and find out how true that was. If it wasn't true -- or if all the officials involved were already blithely signing affidavits that it wasn't true, for qualified-immunity purposes -- then, sorry, you're going to lose against the big defendants.

At least under Iqbal you get to lose quickly.

To sum up: my sense is that the complaint as pled would have satisfied Iqbal but lost on qualified-immunity grounds. Plaintiffs then had to scramble to find a way to beat the qualified-immunity argument, but the allegations weren't there in the complaint to support that tactic. Hence, they lost and had to start over after the case was dismissed without prejudice. They deserved to lose and are lucky that Iqbal was new so they got another bite at the apple.
They are doing better this time with a coherent theory of the case.

What am I missing?


Posted by: Jim von der Heydt | Jun 27, 2012 9:25:43 PM

The First Amendment claim is that the protesters were moved from a place they otherwise had a right to be, because of their speech and not for some legitimate reason. The original complaint alleged they were moved and that the reason for removing them (security) was pretextual. That should have been sufficient to state a claim. Using the pro-Bush demonstrators as comparators is just one way to present the inference of viewpoint-based motivation; it is not the only way. And the way the original complaint did it should have been sufficient.

Posted by: Howard Wasserman | Jun 27, 2012 6:23:30 PM

It looks to me as if the plaintiff's lawyers simply should have done a better job the first time. You can't found a claim of viewpoint DISCRIMINATION on the allegation that "the agent requested that we 'anti' protesters be moved to the same distance from the President as the 'pro' protesters." Sameness isn't discriminatory. They should have simply alleged that his orders were to create MORE distance, using the reasonable inference from the fact that that is how the order was carried out and positing that evidence to the contrary is lies. It's not hard to satisfy Rule 11 on these points. Then the litigation could have focused on facts instead of technicalities around possible states of mind and pleading standards.

You call it bad civil procedure, I call it bad lawyering. But then I haven't looked into it closely, or even read your article yet.

Posted by: Jim von der Heydt | Jun 27, 2012 5:43:33 PM

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