Moss v. U.S. Secret Service

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