Moss v. U.S. Secret Service, No. 07-36018.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtTashima
Citation572 F.3d 962
Decision Date16 July 2009
Docket NumberNo. 07-36018.
PartiesMichael MOSS; Lesley Adams; Beth Wilcox; Richard Royer; Lee Frances Torelle; Mischelle Elkovich; Anna Boyd, individually and on behalf of a class of persons similarly situated; Jackson County Pacific Green Party, Plaintiffs-Appellees, v. U.S. SECRET SERVICE, of the Department of Homeland Security; Ralph Basham, Former Director of the United States Secret Service, in his individual capacity, Defendants, and Tim Wood, United States Secret Service Agent, in his official and individual capacities; Rob Savage, United States Secret Service Agent, in his official and individual capacities, Defendants-Appellants.
572 F.3d 962
Michael MOSS; Lesley Adams; Beth Wilcox; Richard Royer; Lee Frances Torelle; Mischelle Elkovich; Anna Boyd, individually and on behalf of a class of persons similarly situated; Jackson County Pacific Green Party, Plaintiffs-Appellees,
v.
U.S. SECRET SERVICE, of the Department of Homeland Security; Ralph Basham, Former Director of the United States Secret Service, in his individual capacity, Defendants, and
Tim Wood, United States Secret Service Agent, in his official and individual capacities; Rob Savage, United States Secret Service Agent, in his official and individual capacities, Defendants-Appellants.
No. 07-36018.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted October 24, 2008.
Submission Vacated and Deferred December 17, 2008.
Resubmitted June 25, 2009.
Filed July 16, 2009.

[572 F.3d 964]

Edward Himmelfarb, U.S. Department of Justice, Civil Division, Washington, D.C., for the defendants-appellants.

Steven M. Wilker, Tonkon Torp LLP, Portland, OR, for plaintiffs-appellees.

Appeal from the United States District Court for the District of Oregon, Owen M. Panner, District Judge, Presiding. DC No. CV 06-3045 MDC.

Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges, and GEORGE H. WU,* District Judge.

TASHIMA, Circuit Judge:


Plaintiffs-Appellees, individually and on behalf of a class of people similarly situated, allege that two United States Secret Service ("Secret Service") Agents, Tim Wood and Rob Savage (together, the "Agents" or "Defendants"), violated their First Amendment rights when they ordered the relocation of a demonstration critical of then-President George W. Bush. They sued the Agents for damages under the implied cause of action first recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S.

572 F.3d 965

388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The Agents filed a motion to dismiss based on qualified immunity. The district court denied the motion, prompting this interlocutory appeal. Defendants also seek review of the district court's deferral of their alternative motion for summary judgment.

We reverse the district court's denial of the Agents' motion to dismiss, but Plaintiffs should be granted leave to amend their complaint so that they have the opportunity to comply with Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ("Twombly"), and Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Iqbal"). We lack jurisdiction over Defendants' alternative summary judgment motion; therefore, we dismiss that portion of their appeal.

FACTS

On October 14, 2004, following a campaign appearance, former President George W. Bush dined at the Jacksonville Inn (the "Inn") in Jacksonville, Oregon.1 Plaintiffs, who had earlier learned of the President's plan to visit the Inn, organized a demonstration to express opposition to the President and his policies.

Approximately 200 anti-Bush demonstrators assembled on the sidewalk in front of the Inn around 6:00 p.m. The President arrived an hour and fifteen minutes later, entering the Inn's open air dining patio through a back entrance. Just prior to the President's arrival, state and local police cleared the alleyway behind the Inn to provide access to the back entrance, and began restricting the movements of some of the demonstrators outside the Inn. At the same time, Defendants permitted dozens of hotel guests and diners to remain inside the Inn without conducting security screening.

Meanwhile, a pro-Bush demonstration had assembled one block west of Plaintiffs' demonstration. At the time of the events at issue in this case, Plaintiffs' demonstration occupied the north and south sides of California Street directly in front of the Inn, and the pro-Bush demonstration occupied the north side of the street, one block immediately west of the Inn. Relations between the two groups of demonstrators were cordial. The anti-Bush protestors chanted slogans and displayed signs in an orderly and peaceable manner, although their chants were audible in the patio area where the President was dining.2

At approximately 7:30 p.m., the Agents directed state and local law enforcement officers to clear California Street between Third and Fourth Streets — the area encompassing Plaintiffs' demonstration — and to move "all persons" in that particular area east of Fourth Street. The Agents informed the officers tasked with relocating protestors that the area between Third and Fourth Streets needed to be cleared to ensure that nobody came within handgun or explosive range of the President.

After making amplified announcements ordering Plaintiffs to disperse, state and local police drove Plaintiffs all the way to the east side of Fifth Street, divided them into two groups, and prevented them from leaving the immediate area. Plaintiffs also allege that state and local police officers

572 F.3d 966

employed clubs, pepperspray bullets, and violent shoving as they moved demonstrators away from the Inn. The pro-Bush demonstration on the west side of Third Street was allowed to continue without interruption, and no pro-Bush demonstrators were screened or otherwise inconvenienced.

Plaintiffs allege that the Agents' treatment of the anti-Bush demonstration in Jacksonville was but one instance of an officially authorized, sub rosa Secret Service policy. Although the Secret Service has issued written guidelines, directives, instructions, and rules prohibiting differential treatment of pro-government and anti-government protestors, Plaintiffs contend that the formal policy is a "sham" designed to insulate Defendants' and the Secret Service's actual policy from review. In support of this claim, Plaintiffs allege that the Secret Service has engaged in analogous conduct on other occasions, despite numerous complaints and lawsuits.

PROCEDURAL BACKGROUND

Plaintiffs brought this action against the Secret Service, former Secret Service Director Ralph Basham, and the Agents, along with various state and local police officials. The Amended Complaint alleges violations of Plaintiffs' First, Fourth, and Fifth Amendment rights, and seeks both damages and prospective relief. At a pre-trial conference, Defendants indicated that they would resist all discovery requests until they obtained a ruling on a yet to be filed qualified immunity motion. Rather than engage in a discovery battle, Plaintiffs elected to await Defendants' motion.

The Agents filed a motion to dismiss and, in the alternative, for summary judgment, on all of Plaintiffs' claims. Declarations from both Wood and Savage were filed in support of the motion. The declarations state that Wood had no involvement in the relocation of Plaintiffs' demonstration, and that Savage's actions were calculated to protect the President's safety and had nothing to do with Plaintiffs' political message. The district court subsequently issued a minute order indicating that the Agents' motion would be treated as one for summary judgment.

Upon reviewing the Agents' motion and supporting declarations raising contested factual issues, Plaintiffs again submitted discovery requests. Defendants responded by asking that all discovery requests be withdrawn pending resolution of their motion to dismiss based on qualified immunity. Plaintiffs then filed a Federal Rule of Civil Procedure 56(f) declaration in opposition to the motion for summary judgment.3 Counsel explained that he had not yet had an opportunity to depose the Agents or to engage in other discovery regarding the events at issue in the summary judgment motion; consequently, that a ruling on the alternative summary judgment motion would be premature, premised as it was on the Agents' declarations, as to which Plaintiffs had been denied discovery.

The magistrate judge heard argument on the motions for and against allowing any discovery. Defendants argued that they were entitled to a ruling on qualified immunity at the earliest possible point in the litigation, and stressed that the qualified immunity doctrine operates to protect government officers from the burdens of pre-trial discovery. Plaintiffs countered that a stay of discovery pending resolution of Defendants' motion to dismiss would be acceptable, but only if the court deferred

572 F.3d 967

consideration of the factual issues raised in the summary judgment portion of the motion. The magistrate's order stayed discovery pending resolution of Defendants* Rule 12(b)(6) motion. The order expressly determined that Plaintiffs had made a sufficient showing of need to justify a Rule 56(f) continuance, and vacated the prior order converting Defendants' motion into one for summary judgment. Defendants filed no objection.

At the hearing on the Rule 12(b)(6) qualified immunity motion, Defendants acknowledged that the arguments presented took Plaintiffs' factual allegations as true, and all parties acknowledged that the disputed factual issues were not before the court.

The magistrate then issued a final Report and Recommendation ("R & R") recommending dismissal of all of Plaintiffs' claims against the state and local defendants, their Fourth and Fifth Amendment claims and all claims for prospective relief against the Agents and the Secret Service itself, and dismissal of all claims against Defendant Basham for lack of personal jurisdiction. The R & R concluded that, with respect to the individual Agents, Plaintiffs had pleaded a violation of clearly established First Amendment law. The magistrate did not address the alternative summary judgment motion — the clear implication being that consideration of that motion, and any related fact discovery, would be deferred until after resolution of the motion to dismiss.

The district court adopted the magistrate's R & R without alteration. Defendants timely appealed the denial of qualified immunity, and also sought review of what they characterize as the...

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7868 practice notes
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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 15, 2018
    ...presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Service, 572 F.3d 962,Page 3 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.III. SUMMARY OF ALLEGA......
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    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 24, 2020
    ...accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls s......
  • Johnson v. Saul, Case No.: 20-CV-747 JLS (AHG)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • January 25, 2021
    ...defendant-unlawfully-harmed me accusation[s]" fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Further, "[w]hile factual allegations are accepted as true, legal conclusions are not." Hoagland v. Astrue, No. 1:12-cv......
  • Koch v. Ahlin, 1:18-cv-00546-LJO-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 19, 2019
    ...presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. In reviewing the pro se com......
  • Request a trial to view additional results
7873 cases
  • Quiroga v. Graves, 1:16-cv-00234-DAD-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 15, 2018
    ...presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Service, 572 F.3d 962,Page 3 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.III. SUMMARY OF ALLEGA......
  • Van Gessel v. Moore, 1:18-cv-01478-DAD-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • February 24, 2020
    ...accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Id. The mere possibility of misconduct falls s......
  • Johnson v. Saul, Case No.: 20-CV-747 JLS (AHG)
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • January 25, 2021
    ...defendant-unlawfully-harmed me accusation[s]" fall short of meeting this plausibility standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). Further, "[w]hile factual allegations are accepted as true, legal conclusions are not." Hoagland v. Astrue, No. 1:12-cv......
  • Koch v. Ahlin, 1:18-cv-00546-LJO-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • December 19, 2019
    ...presentation of factual allegations sufficient to state a plausible claim for relief. Iqbal, 556 U.S. at 678; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id. In reviewing the pro se com......
  • Request a trial to view additional results

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