Moss v. U.S. Secret Service ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
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 No. 07-36018
Department of Homeland Security;
RALPH BASHAM, Former Director  DC No.
CV 06-3045 MDC
of the United States Secret OPINION
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.

Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
9063
9064 MOSS v. U.S. SECRET SERVICE
Argued and Submitted
October 24, 2008—Portland, Oregon
Submission Vacated and Deferred December 17, 2008
Resubmitted June 25, 2009
Filed July 16, 2009
Before: A. Wallace Tashima and Milan D. Smith, Jr., Circuit
Judges, and George H. Wu,* District Judge.
Opinion by Judge Tashima
*The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
MOSS v. U.S. SECRET SERVICE 9067
COUNSEL
Edward Himmelfarb, U.S. Department of Justice, Civil Divi-
sion, Washington, D.C., for the defendants-appellants.
Steven M. Wilker, Tonkon Torp LLP, Portland, Oregon, for
plaintiffs-appellees.
OPINION
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 reloca-
tion 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. 388,
397 (1971).
The Agents filed a motion to dismiss based on qualified
immunity. The district court denied the motion, prompting
9068 MOSS v. U.S. SECRET SERVICE
this interlocutory appeal. Defendants also seek review of the
district court’s deferral of their alternative motion for sum-
mary 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 (2007)
(“Twombly”), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (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, orga-
nized 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 Presi-
dent 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
1
The facts stated here, except where noted, are derived from Plaintiffs’
Amended Complaint.
MOSS v. U.S. SECRET SERVICE 9069
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 cor-
dial. 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. Plain-
tiffs also allege that state and local police officers employed
clubs, pepperspray bullets, and violent shoving as they moved
demonstrators away from the Inn. The pro-Bush demonstra-
tion 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 offi-
2
Plaintiffs’ Amended Complaint includes a map depicting the positions
of the two demonstrations vis-à-vis the back patio area of the Inn at the
time of the President’s arrival. This map, or diagram, is appended at the
end of this opinion as an “Appendix.”
9070 MOSS v. U.S. SECRET SERVICE
cially 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 insu-
late 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, for-
mer 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. Declara-
tions 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 Sav-
age’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 decla-
rations raising contested factual issues, Plaintiffs again sub-
mitted discovery requests. Defendants responded by asking
that all discovery requests be withdrawn pending resolution of
MOSS v. U.S. SECRET SERVICE 9071
their motion to dismiss based on qualified immunity. Plain-
tiffs then filed a Federal Rule of Civil Procedure 56(f) decla-
ration 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; conse-
quently, 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 ear-
liest possible point in the litigation, and stressed that the qual-
ified 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 consideration of the factual issues raised
in the summary judgment portion of the motion. The magis-
trate’s order stayed discovery pending resolution of Defen-
dants’ 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 convert-
ing 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 pres-
ented took Plaintiffs’ factual allegations as true, and all parties
acknowledged that the disputed factual issues were not before
the court.
3
Rule 56(f) requires a party seeking postponement of a summary judg-
ment motion to “show how additional discovery would preclude summary
judgment and why [it] cannot immediately provide ‘specific facts’ demon-
strating a genuine issue of material fact.” Mackey v. Pioneer Nat’l Bank,
867 F.2d 520, 524 (9th Cir. 1989) (citing FED. R. CIV. P. 56(f)).
9072 MOSS v. U.S. SECRET SERVICE
The magistrate then issued a final Report and Recommen-
dation (“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 deferral of their alternative summary judgment motion.
The district court stayed all proceedings in this case pending
resolution of the Agents’ appeal.
JURISDICTION
The district court exercised subject matter jurisdiction over
Plaintiffs’ First Amendment claims under Bivens and 28
U.S.C. § 1331.4 Insofar as it “turns on an issue of law,”
Defendants’ interlocutory appeal of the district court’s denial
of qualified immunity “is an appealable ‘final decision’ within
the meaning of 28 U.S.C. § 1291 notwithstanding the absence
of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530
(1985); see generally Cohen v. Beneficial Indus. Loan Corp.,
4
The Supreme Court has never explicitly held that the logic of Bivens
extends to claims alleging a First Amendment violation. See Iqbal, 129 S.
Ct. at 1948 (assuming, without deciding, that such a claim is actionable
under Bivens). This court, however, has held that Bivens authorizes First
Amendment damages claims. Gibson v. United States, 781 F.2d 1334,
1342 (9th Cir. 1986).
MOSS v. U.S. SECRET SERVICE 9073
337 U.S. 541, 546 (1949) (recognizing a narrow class of col-
lateral orders that are “too important to be denied review and
too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicat-
ed”).
As discussed infra, we lack jurisdiction to review the dis-
trict court’s deferral of the Agents’ alternative motion for
summary judgment.
ANALYSIS
I. Defendants’ Motion to Dismiss
A. Pleading Standards
[1] In assessing the Agents’ qualified immunity defense,
we must first determine whether the facts alleged in the com-
plaint, viewed in the light most favorable to Plaintiffs, demon-
strate that the Agents’ conduct violated Plaintiffs’ First
Amendment rights. See Saucier v. Katz, 533 U.S. 194, 201
(2001).5 If the facts alleged establish a constitutional viola-
tion, the next step is to determine whether the right at issue
was clearly established at the time of the violation. Robinson
v. Solano County, 278 F.3d 1007, 1013 (9th Cir. 2002) (en
banc).
Before turning to the threshold question of whether Plain-
tiffs have sufficiently alleged a constitutional violation, we
address recent developments in the Supreme Court’s plead-
5
The Supreme Court recently held that lower courts are no longer
required to consider whether a constitutional violation occurred before
considering whether the right in question was “clearly established.” Pear-
son v. Callahan, 129 S. Ct. 808, 821 (2009). Pearson “does not prevent
the lower courts from following the Saucier procedure; it simply recog-
nizes that those courts should have the discretion to decide whether that
procedure is worthwhile in particular cases.” Id. We see no reason to
depart from the Saucier two-step procedure here.
9074 MOSS v. U.S. SECRET SERVICE
ings jurisprudence, first in Twombly, then the Court’s clarifi-
cation of that holding in Iqbal.
Twombly concerned a conspiracy claim under Section 1 of
the Sherman Act. 550 U.S. at 548-49. The plaintiffs had
alleged facts suggesting that the defendant companies had
engaged in parallel market conduct, but did not allege specific
facts indicating the existence of an actual agreement in
restraint of trade, an element of the plaintiff’s cause of action.
See id. at 553-57. In reversing the Second Circuit’s denial of
the defendants’ Rule 12(b)(6) motion, the Court held that an
antitrust plaintiff must plead a set of facts “plausibly suggest-
ing (not merely consistent with)” a Sherman Act violation to
survive a motion to dismiss. Id. at 557.
The Court cautioned that it was not outright overruling
Conley v. Gibson, 355 U.S. 41 (1957), the foundational “no-
tice pleading” case construing Federal Rule of Civil Proce-
dure 8(a)(2), but explained that Conley’s oft-cited maxim that
“a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would enti-
tle him to relief,” Conley, 355 U.S. at 45-46, read literally, set
the bar too low.6 See Twombly, 550 U.S. at 561-62. “[A]fter
puzzling the profession for 50 years,” the Court concluded,
Conley’s “no set of facts” refrain “is best forgotten as an
incomplete, negative gloss on an accepted pleading standard
. . . .” Id. at 563.
At the same time, the Court appeared to signal that Twom-
bly should not be read as effecting a sea change in the law of
pleadings. Twombly cited Scheuer v. Rhodes, 416 U.S. 232,
236 (1974), for the proposition that pleadings should not be
found deficient even if it is apparent “that a recovery is very
6
Rule 8(a)(2) states that a complaint must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” FED.
R. CIV. P. 8(a)(2).
MOSS v. U.S. SECRET SERVICE 9075
remote and unlikely.” 550 U.S. at 556. And in Erickson v.
Pardus, 551 U.S. 89 (2007), decided shortly after Twombly,
the Court noted that “[s]pecific facts are not necessary” for
pleadings to satisfy Rule 8(a)(2). Id. at 93 (citing Twombly
(quoting Conley) for that proposition).
Much confusion accompanied the lower courts’ initial
engagement with Twombly. Compare Kendall v. Visa U.S.A.,
Inc., 518 F.3d 1042, 1047 n.5 (9th Cir. 2008) (stating that, at
least for the purposes of antitrust cases, Twombly abrogated
the usual “notice pleading” rule); and ACA Fin. Guar. Corp.
v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008) (concluding
that Twombly provided Rule 12(b)(6) with “more heft”); with
Aktieselskabet AF 21. November 2001 v. Fame Jeans, 525
F.3d 8, 15 & n.3 (D.C. Cir. 2008) (noting disagreement
among the circuits about Twombly’s import and concluding
that the case “leaves the long-standing fundamentals of notice
pleading intact”).
The Court addressed some of the lower courts’ lingering
questions in Iqbal.7 That case — also a Bivens action alleging
(among other claims) First Amendment violations — elabo-
rated on Twombly’s applicability in the context of a motion to
dismiss based on qualified immunity.
The plaintiff in Iqbal, a Pakistani Muslim man, was
arrested and detained in the days following the attacks of Sep-
tember 11, 2001. 129 S. Ct. at 1942. He alleged that former
Attorney General of the United States John Ashcroft and Fed-
eral Bureau of Investigation (“FBI”) Director Robert Mueller,
by specifically authorizing an unconstitutional detention pol-
icy, subjected him to “harsh conditions of confinement on
account of his race, religion, or national origin.” Id.
7
As a an initial matter, the Iqbal Court made clear that Twombly’s
“plausibility standard” applies to pleadings in civil actions generally,
rejecting the plaintiff’s suggestion that the holding be limited to the anti-
trust context. 129 S. Ct. at 1953.
9076 MOSS v. U.S. SECRET SERVICE
The Court first explained that “bare assertions . . . amount[-
ing] to nothing more than a ‘formulaic recitation of the ele-
ments’ of a constitutional discrimination claim,” for the
purposes of ruling on a motion to dismiss, are not entitled to
an assumption of truth. Id. at 1951 (quoting Twombly, 550
U.S. at 555). Such allegations are not to be discounted
because they are “unrealistic or nonsensical,” but rather
because they do nothing more than state a legal conclusion —
even if that conclusion is cast in the form of a factual allega-
tion. Id. Thus, in Iqbal, the Court assigned no weight to the
plaintiff’s conclusory allegation that former Attorney General
Ashcroft and FBI Director Mueller knowingly and willfully
subjected him to harsh conditions of confinement “solely on
account of [his] religion, race, and/or national origin and for
no legitimate penological interest.” Id. (quoting plaintiff’s
complaint).
After dispatching the complaint’s conclusory allegations,
the Court elaborated on Twombly’s plausibility standard. “A
claim has facial plausibility,” the Court explained, “when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” 129 S. Ct. at 1949. “The plausibility
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where
a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possi-
bility and plausibility of entitlement to relief.’ ” Id. (quoting
Twombly, 550 U.S. at 557).
[2] In sum, for a complaint to survive a motion to dismiss,
the non-conclusory “factual content,” and reasonable infer-
ences from that content, must be plausibly suggestive of a
claim entitling the plaintiff to relief. Id. With that standard in
mind, we turn to Plaintiffs’ Amended Complaint.
MOSS v. U.S. SECRET SERVICE 9077
B. Viewpoint Discrimination
Plaintiffs allege that the Agents engaged in unconstitutional
viewpoint discrimination when they ordered state and local
police to move anti-Bush demonstrators away from the public
areas outside of the Inn.
[3] “ ‘[V]iewpoint discrimination’ occurs when the gov-
ernment prohibits ‘speech by particular speakers,’ thereby
suppressing a particular view about a subject.” Giebel v. Syl-
vester, 244 F.3d 1182, 1188 (9th Cir. 2001) (quoting Perry
Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 59
(1983) (Brennan, J., dissenting)). The Supreme Court has
made clear that government suppression of speech based on
the speaker’s motivating ideology, opinion, or perspective is
impermissible. See Rosenberger v. Rector & Visitors of Univ.
of Va., 515 U.S. 819, 828 (1995) (“It is axiomatic that the
government may not regulate speech based on its substantive
content or the message it conveys.”); Mahoney v. Babbitt, 105
F.3d 1452, 1456 (D.C. Cir. 1997) (holding that the First
Amendment does not permit the federal government to bar
ideological opponents from peacefully protesting on the side-
walks of Pennsylvania Avenue during President Clinton’s
second Inaugural Parade). To prevail on their Bivens claim
against the individual Agents, Plaintiffs must establish that
the Agents ordered the relocation of their demonstration
because of, not merely in spite of, the demonstration’s anti-
Bush message.8
[4] The critical question before us is thus whether Plain-
tiffs’ allegation that the Agents ordered the relocation of their
8
Content neutral regulation of speech, even in a public forum, is permis-
sible if it is narrowly tailored and provides for alternative avenues of com-
munication. See Hill v. Colorado, 530 U.S. 703, 725-26 (2000). Plaintiffs
insist that their claim cannot be analyzed through the lens of content neu-
tral regulation of speech, and do not address tailoring issues in their brief-
ing. We thus limit our discussion to the viewpoint discrimination
allegation.
9078 MOSS v. U.S. SECRET SERVICE
demonstration because of its anti-Bush message is plausible,
not merely possible. In Iqbal, the Court laid out the following
methodological approach for assessing the adequacy of a
plaintiff’s complaint:
[A] court considering a motion to dismiss can choose
to begin by identifying pleadings that, because they
are no more than conclusions, are not entitled to the
assumption of truth. While legal conclusions can
provide the framework of a complaint, they must be
supported by factual allegations. When there are
well-pleaded factual allegations, a court should
assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.
Id. at 1950. We follow the Court’s suggested sequence below.
[5] The bald allegation of impermissible motive on the
Agents’ part, standing alone, is conclusory and is therefore
not entitled to an assumption of truth. The same is true of
Plaintiffs’ allegation that, in ordering the relocation of their
demonstration, the Agents acted in conformity with an offi-
cially authorized sub rosa Secret Service policy of suppress-
ing speech critical of the President. The allegation of
systematic viewpoint discrimination at the highest levels of
the Secret Service, without any factual content to bolster it, is
just the sort of conclusory allegation that the Iqbal Court
deemed inadequate, and thus does nothing to enhance the
plausibility of Plaintiffs’ viewpoint discrimination claim
against the Agents.
[6] Under Iqbal, our next step is to evaluate Plaintiffs’ spe-
cific factual allegations to determine whether we can reason-
ably infer a First Amendment violation from those facts. See
id. Plaintiffs raise two separate non-conclusory factual allega-
tions in support of their claim. First, they allege that the
Agents ordered the relocation of their demonstration, but left
a similarly situated pro-Bush demonstration undisturbed. Sec-
MOSS v. U.S. SECRET SERVICE 9079
ond, they contend that the diners and guests inside the Inn
were not subjected to security screening or asked to leave the
premises, despite their close proximity to the President. They
present, in essence, an argument for presuming the Agents’
discriminatory intent by way of evidence of disparate impact.
[7] The complaint alleges that the Agents instructed state
and local police to move “all persons” between Third and
Fourth streets to the east side of Fourth Street, a position
roughly the same distance from the Inn’s patio dining area as
the Pro-Bush demonstration, and that in issuing that order, the
Agents explained their desire to ensure that no protesters
remained in handgun or explosive range of the President. See
Appendix. If the Agents’ motive in moving Plaintiffs away
from the Inn was — contrary to the explanation they provided
to state and local police — suppression of Plaintiffs’ anti-
Bush message, then presumably, they would have ensured
that demonstrators were moved to an area where the President
could not hear their demonstration, or at least to an area far-
ther from the Inn then the position that the pro-Bush demon-
strators occupied. Instead, according to the complaint, the
Agents simply instructed state and local police to move the
anti-Bush protestors to a location situated a comparable dis-
tance from the Inn as the other demonstrators, thereby estab-
lishing a consistent perimeter around the President. See id.
This is not a plausible allegation of disparate treatment.
Plaintiffs allege that they were ultimately driven more than
three blocks away from the Inn, surrounded, and subjected to
abusive police tactics, but nowhere does their complaint
allege, or even imply, that either Wood or Savage had any-
thing to do with how the local police carried out the initial
order. Without any allegation tying the Agents to the actions
of the local police, we may not assume that either did any-
thing beyond ordering Plaintiffs moved to the east side of
Fourth Street. See Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir. 2001) (stating that courts are not
required to make “unreasonable inferences” or “unwarranted
9080 MOSS v. U.S. SECRET SERVICE
deductions of fact” to save a complaint from a motion to dis-
miss).
[8] Plaintiffs’ allegation that the diners and guests inside
the Inn were allowed to remain in close proximity to the Pres-
ident without security screening does not push their viewpoint
discrimination claim into the realm of the plausible. Again,
the crux of Plaintiffs’ complaint is that the differential treat-
ment of similarly situated pro-Bush and anti-Bush demonstra-
tors reveals that the Agents had an impermissible motive —
suppressing Plaintiffs’ anti-Bush viewpoint. The differential
treatment of diners and guests in the Inn, who did not engage
in expressive activity of any kind and were not located in the
public areas outside of the Inn, however, offers little if any
support for such an inference. See Menotti v. City of Seattle,
409 F.3d 1113, 1130 (9th Cir. 2005) (holding that security
zone exceptions permitting shoppers and employees, but not
protestors, to enter a restricted area did not amount to discrim-
ination on the basis of viewpoint because the two groups were
not similarly situated).
[9] We conclude that Plaintiffs’ complaint fails to plead
facts plausibly suggesting a colorable Bivens claim against the
Agents. The facts do not rule out the possibility of viewpoint
discrimination, and thus at some level they are consistent with
a viable First Amendment claim, but mere possibility is not
enough. The factual content contained within the complaint
does not allow us to reasonably infer that the Agents ordered
the relocation of Plaintiffs’ demonstration because of its anti-
Bush message, and it therefore fails to satisfy Twombly and
Iqbal.
C. Leave to Amend
[10] Plaintiffs contend that, if the Supreme Court’s inter-
vening decisions altered pleading standards in a meaningful
way, and their complaint is found deficient under those stan-
MOSS v. U.S. SECRET SERVICE 9081
dards, they should be granted leave to amend.9 Courts are free
to grant a party leave to amend whenever “justice so
requires,” FED. R. CIV. P. 15(a)(2), and requests for leave
should be granted with “extreme liberality.” Owens v. Kaiser
Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001)
(quoting Morongo Band of Mission Indians v. Rose, 893 F.2d
1074, 1079 (9th Cir. 1990)). “ ‘Dismissal without leave to
amend is improper unless it is clear, upon de novo review,
that the complaint could not be saved by any amendment.’ ”
Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002)
(quoting Polich v. Burlington N., Inc., 942 F.2d 1467, 1472
(9th Cir. 1991)).
[11] We agree with Plaintiffs that they should be granted
leave to amend. Prior to Twombly, a complaint would not be
found deficient if it alleged a set of facts consistent with a
claim entitling the plaintiff to relief. See Conley, 355 U.S. at
45-46. Under the Court’s latest pleadings cases, however, the
facts alleged in a complaint must state a claim that is plausible
on its face. As many have noted, this is a significant change,
with broad-reaching implications. See, e.g., A. Benjamin
Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 433
(2008) (characterizing Twombly as an abrupt and significant
departure from the long-standing tradition of liberal notice
pleading in the federal courts). Having initiated the present
lawsuit without the benefit of the Court’s latest pronounce-
ments on pleadings, Plaintiffs deserve a chance to supplement
their complaint with factual content in the manner that Twom-
bly and Iqbal require.
II. Defendants’ Alternative Motion for Summary
Judgment
Defendants also seek appellate review of the district court’s
deferral of their alternative motion for summary judgment.
9
Plaintiffs filed their Amended Complaint on September 26, 2006, and
the Supreme Court issued its opinion in Twombly on May 21, 2007.
9082 MOSS v. U.S. SECRET SERVICE
The attempt is misguided and, if it were to succeed, would
deny Plaintiffs a fair opportunity to litigate the merits of their
claim.
[12] A district court’s denial of summary judgment in a
qualified immunity case is not immediately appealable where
the court’s order implicates a question of “evidence sufficien-
cy.” See Johnson v. Jones, 515 U.S. 304, 313 (1995); see also
Tennison v. City & County of S.F., 2009 WL 1758711, at *15
(9th Cir. Jun. 23, 2009) (holding that disputed issues of fact
precluded the grant of summary judgment on a qualified
immunity claim (citing KRL v. Estate of Moore, 512 F.3d
1184, 1188-89 (9th Cir. 2008)); Berdecia-Perez v. Zayas-
Green, 111 F.3d 183, 184 (1st Cir. 1997) (holding that,
because it presented an issue of fact, appellate court lacked
jurisdiction to review a defendant officer’s interlocutory claim
that he did not intend to interfere with the plaintiff’s First
Amendment rights). Thus, the Supreme Court has held,
defenses that amount to a claim that a particular official
“didn’t do it” may defeat liability on the merits, but adverse
rulings on such defenses at the summary judgment stage are
not immediately appealable. See Johnson, 515 U.S. at 316. To
exercise jurisdiction over an interlocutory denial of qualified
immunity, an appellate court must assume the version of the
facts asserted by the nonmoving party, and address itself to
the abstract question of the law’s application to those facts.
See Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir.
2000).
Undaunted by the weight of the caselaw, Defendants urge
this court to review disputed factual issues in an interlocutory
appeal — including the defense that Agent Wood “didn’t do
it.” See Appellant’s Opening Br. at 41 (“The undisputed evi-
dence in the summary-judgment record shows that Agent
Wood played no part in establishing the security perimeter.”).
The evidence of Agent Wood’s involvement in the relocation
of Plaintiffs’ demonstration can be called “undisputed” only
because the district court stayed discovery at Defendants’
MOSS v. U.S. SECRET SERVICE 9083
request; thus, Plaintiffs have not yet had the opportunity to
dispute it.10
Defendants insist that, where qualified immunity is at issue,
a district court may not defer ruling on the question of
whether an official’s actions violated clearly established law,
and that orders deferring such a ruling should therefore be
immediately appealable. This court squarely rejected that
argument in the context of a deferred ruling on an absolute
immunity defense. See Miller v. Gammie, 335 F.3d 889, 894
(9th Cir. 2003) (en banc) (holding that “[d]istrict court orders
deferring a ruling on immunity for a limited time to ascertain
what relevant functions were performed generally are not
appealable . . . because they are not orders that deny the
claimed existence of immunity . . .”). Further, Defendants’
argument is difficult to reconcile with the Supreme Court’s
recognition that limited discovery, tailored to the issue of
qualified immunity, will sometimes be necessary before a dis-
trict court can resolve a motion for summary judgment. See
Anderson v. Creighton, 483 U.S. 635, 646 n.6 (1987); see also
Crawford-El v. Britton, 523 U.S. 574, 593 n.14 (1998) (plu-
rality opinion) (stating that qualified immunity exists to pro-
tect officials from “ ‘broad-reaching discovery’ ” but not from
discovery altogether (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982))).
But even assuming that orders deferring a ruling on quali-
fied immunity are immediately appealable in some circum-
stances, those circumstances are clearly not present here. In
the context of a denial of qualified immunity, the policy justi-
fication for permitting immediate appeal rests on the fact that
qualified immunity is an immunity from suit, distinct from the
merits of the underlying claim. See Behrens v. Pelletier, 516
U.S. 299, 308 (1996) (noting that qualified immunity “is
meant to give government officials a right, not merely to
10
Defendants refused to comply with any of Plaintiffs’ discovery
requests prior to the district court’s issuance of the stay.
9084 MOSS v. U.S. SECRET SERVICE
avoid ‘standing trial,’ but also to avoid the burdens of ‘such
pretrial matters as discovery . . . , as [i]nquiries of this kind
can be peculiarly disruptive of effective government.’ ” (alter-
ations in original) (quoting Mitchell, 472 U.S. at 526)). Thus,
an order clearing the way for burdensome pre-trial discovery
obligations renders the denial of immunity effectively unre-
viewable on appeal from final judgment — immunity from
suit is of no use at that late stage. See Mitchell, 472 U.S. at
526.
[13] As discussed above, the district court has yet to order
any discovery or to compel the Agents to submit to deposi-
tions. Thus, to the extent that this portion of Defendants’
interlocutory appeal is premised on a need to obtain appellate
review before being subjected to burdensome pretrial obliga-
tions, that need has not been shown, and the appeal is prema-
ture.11 See Garrett v. Stratman, 254 F.3d 946, 953 (10th Cir.
2001) (“Prior to resolution of qualified immunity, ‘appellate
jurisdiction is invoked when a defendant . . . is faced with dis-
covery that exceeds that narrowly tailored to the question of
qualified immunity.’ ” (quoting Lewis v. City of Fort Collins,
903 F.2d 752, 754 (10th Cir. 1990)); Lion Boulos v. Wilson,
834 F.2d 504, 507-08 (5th Cir. 1987) (holding that a discov-
ery order is not immediately appealable when a defendant is
faced with discovery that is narrowly tailored to the question
11
Defendants’ appeal, as Plaintiffs point out, could also be construed as
seeking review of the district court’s order granting Plaintiffs’ Rule 56(f)
motion to continue consideration of the summary judgment motion —
although Defendants themselves do not characterize their appeal as such.
Where appealable, we ordinarily review the denial of a Rule 56(f) continu-
ance for abuse of discretion. Chance v. Pac-Tel Teletrac Inc., 242 F.3d
1151, 1161 n.6 (9th Cir. 2001). For the same reasons set forth above, i.e.,
the fact that the district court stayed proceedings pending resolution of the
Agents’ motion to dismiss based on qualified immunity, the district
court’s order granting a Rule 56(f) continuance is not immediately appeal-
able here. We do not reach the question whether there are circumstances
under which an order granting a Rule 56(f) continuance amounts to an
immediately appealable collateral order.
MOSS v. U.S. SECRET SERVICE 9085
of qualified immunity); cf. Lawson v. Abrams, 863 F.2d 260,
263 (2d Cir. 1988) (holding that appellate court lacked juris-
diction over interlocutory appeal where additional discovery
was necessary to determine whether absolute or qualified
immunity applied based on defendants’ conduct).
Summers v. Leis, 368 F.3d 881 (6th Cir. 2004), Defendants’
principal authority in support of their argument that appellate
jurisdiction is appropriate here, is not on point. In Summers,
the district court denied the defendant official’s summary
judgment motion without prejudice to resubmission because
it had determined that “any decision regarding qualified
immunity was premature and should await the close of dis-
covery.” Id. at 887. Thus, absent an interlocutory appeal, the
defendant was certain to be subject to broad discovery obliga-
tions before obtaining appellate review of the qualified immu-
nity motion. As we have already explained, that is not the
case here. The district court in this case promptly ruled on the
merits of Defendants’ qualified immunity defense — defer-
ring only the summary judgment portion of the motion that
involved disputed factual issues and, crucially, stayed discov-
ery pending resolution of the motion to dismiss. No discovery
at all has been ordered — much less broad-ranging discovery
unmoored from the issue of qualified immunity.
[14] Before the district court, Defendants firmly resisted all
discovery requests and contended that their motion to dismiss
ought to be considered prior to any discovery. The court, rea-
sonably, found the argument persuasive and suggested a pre-
trial sequence that would permit prompt resolution of the
qualified immunity motion while holding discovery in abey-
ance. After getting the litigation sequence they asked for,
Defendants now seek an immediate appellate ruling on their
summary judgment motion without allowing Plaintiffs the
benefit of discovery relating to the core factual matters at
issue on their defense of qualified immunity. We therefore
lack jurisdiction over this portion of Defendants’ appeal;
accordingly, it must be dismissed.
9086 MOSS v. U.S. SECRET SERVICE
CONCLUSION
Under the plausibility standard forth in Twombly and fur-
ther refined in Iqbal, Plaintiffs have not alleged a colorable
claim of unconstitutional viewpoint discrimination against the
Agents. They may be able to amend their complaint to include
facts that will state a plausible claim, and thus the interests of
justice would be served by granting them a chance to do so.
The district court’s denial of qualified immunity is reversed
and the case remanded for further proceedings consistent with
this opinion, including granting Plaintiffs leave to amend their
complaint. Defendants’ appeal from the district court’s defer-
ral of their motion for summary judgment is dismissed. Each
party shall bear its own costs on appeal.
REVERSED and REMANDED, in part; DISMISSED,
in part.
MOSS v. U.S. SECRET SERVICE 9087
APPENDIX