Appeal from the United States District Court for the District of Oregon Owen M. Panner, District Judge, Presiding DC No. CV 06-3045.
The opinion of the court was delivered by: Tashima, Circuit Judge
Argued and Submitted October 24, 2008 -- Portland, Oregon Submission Vacated and Deferred December 17, 2008 Resubmitted June 25, 2009
Before: A. Wallace Tashima and Milan D. Smith, Jr., Circuit Judges, and George H. Wu,*fn1 District 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. 388, 397 (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 (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.
On October 14, 2004, following a campaign appearance, former President George W. Bush dined at the Jacksonville Inn (the "Inn") in Jacksonville, Oregon.*fn2 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.*fn3
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 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 offi- 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 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.
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.*fn4
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 ...