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Wednesday, March 26, 2014

Wood: So many ways for the plaintiff to lose

The Court heard argument today in Wood v. Moss, a "bit-of-everything" case that I have written about previously both on Prawfs and as an early illustrator of Iqbal's dangers. There are all sorts of issues and reasons flying around the case, and while I do not see anyway the plaintiffs will win, I cannot tell why they're going to lose.

Justice Scalia seemed to be itching to hold that the First Amendment cannot be enforced through Bivens. Or, at least, not against Secret Service agents charged with protecting the President. Or, at least, subjective viewpoint-discriminatory intent is irrelevant if there also is a subjective security rationale (i.e., applying Whren to the First Amendment). The government wants to skip the merits and simply conclude that the right against viewpoint discrimination at a presidential appearance was not clearly established.

The pleading discussion came largely in the Respondent's argument. He and the Chief had an interesting exchange about how to read Iqbal--Respondent's attorney hit on the "plausibility is not probability" language, while the Chief hit on the "obvious alternative explanation" language. Lower courts have not done much with that language, at least not rhetorically, but the Chief may be trying to revive it. Respondent tried to read that as one of degree-only if the alternative is so clearly obvious and right that it renders the pled explanation implausible (which, of course, is not the case here). There is also a nice exchange about how discovery can or will work here and (implicitly) whether or not the district court can control it, including whether there are secrecy concerns with disclosing practices and policies regarding how the President is protected.

Justice Kennedy summed the case up best--"it seems to me that if this complaint doesn't survive, nothing will." Indeed. And that is the problem.

Posted by Howard Wasserman on March 26, 2014 at 04:59 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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Bivens -- implied cause of action to vindicate constitutional rights, based upon doctrine of no rights without remedies that stretches back to Marbury v. Madison -- crazy talk!

Iqbal -- judicial re-writing of rule of civil procedure to encourage judges to dismiss cases based on nothing more than speculations about real-world facts advanced by way of lawyers' unverified assertions in briefs -- totally cool, I see no Seventh Amendment problems at all, how can we get more of it?

Posted by: Max Kennerly | Mar 29, 2014 3:02:15 PM

Respondent's counsel gave a pretty good answer on this, at pp. 51-52. Not sure if Scalia buys it, but it hit the point that Whren is the exception for the Fourth Amendment, but does not affect First Amendment or Fifth Amendment (equal protection component) cases.

Posted by: Howard Wasserman | Mar 27, 2014 3:03:18 PM

Here's what I find kind of baffling about Scalia's attempt (and Breyer's apparent openness) to apply Whren to this case. In Whren, the question was whether the officer's subjective motivation rendered unreasonable an otherwise objectively reasonable intrusion, *for the purposes of excluding evidence obtained from the intrusion.* In so doing, the Court explicitly cabined off other means of challenging police conduct based on unconstitutional motives -- it used the Equal Protection Clause as an example. I can see extending Whren (as I am pretty sure every court has) to the civil context, where the plaintiff is basing her challenge on the Fourth Amendment. But it seems to be pretty bad bootstrapping to take Whren, which took as a given the existence of other means of challenging unlawful motives, and rely on it to say that now one can't even bring a lawsuit based on an amendment other than the Fourth.

Posted by: Alex Reinert | Mar 27, 2014 12:29:22 PM

Scalia on multiple occasions, beginning with Malesko, called Bivens a "relic of the heady days in which this Court assumed common-law powers to create causes of action-decreeing them to be "implied" by the mere existence of a statutory or constitutional prohibition" and called for Bivens, Davis, and Carlson (the only three cases in which the Court has recognized a Bivens action) to their precise facts.

Not sure, other than getting other people to go along and perhaps perception, why he hasn't gone the next step. But there is no significant difference between overruling and what he is talking about, in any event.

Posted by: Howard Wasserman | Mar 27, 2014 7:58:19 AM

I'm surprised that AFAIK Scalia has never come out and said Bivens should be overruled. He's certainly hinted at it often enough. He's not usually particularly coy, what gives?

Posted by: Brad | Mar 27, 2014 1:33:12 AM

As I read Scalia, he wants to resolve this case by holding that you can't use Bivens for the First Amendment. The exchange you highlight goes to clearly established. And the point really is an obvious one. The Court has repeatedly said that rights will be clearly established outside of damages actions (in criminal prosecutions or equitable actions).

Posted by: Howard Wasserman | Mar 26, 2014 11:04:16 PM

I was in attendance at the argument. You are correct that Scalia did want to say no SCOTUS case expressly recognized a Bivens action in 1st amendment cases, but Scalia seemed satisfied when ACLU's counsel noted that the Bivens issue went to remedy (monetary damages), not to right. He seemed to mutter "good point, that makes sense" and then move on -- not to say that he was satisfied with the ACLU's case, just that was probably no longer going to be his focus.

Posted by: TS | Mar 26, 2014 9:18:24 PM

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