Archive for July 2013
Recent Post-Iqbal Pleading Decisions in the Circuits (II)
I blogged on September 7, 2012, about post-Iqbal pleading decisions in the circuits.
This year, as I was preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012; West Group)(CIVLIBLIT on WESTLAW), I came across three additional circuit court decisions applying Iqbal. I want to share them with you in advance of publication this fall of the 2013 Update.
Of particular interest is Judge Hamilton’s partially dissenting opinion in the Seventh Circuit’s McCauley decision.
First Circuit
In Grajales v. Puerto Rico Ports Authority, 682 F.3d 40 (1st Cir. 2012), the district court had granted a motion to dismiss under Rule 12(c) submitted by the defendants in a political discrimination case, even though substantial discovery had been completed. The district court determined that the plaintiff’s claim did not cross Iqbal’s plausibility threshold because it did not allege sufficient facts to show political discrimination.
Reversing, the First Circuit did not have to decide whether the district court abused its discretion in ruling on defendants’ motion after nine months of pretrial discovery. Instead, the First Circuit found that the plaintiff’s complaint plausibly alleged political discrimination in violation of the First Amendment. There was enough alleged regarding the membership in different political parties of the plaintiff and the defendants, the defendants’ knowledge of plaintiff’s membership and the existence of an adverse employment action. Finally, the allegations of a close temporal proximity between the regime change and the beginning of pervasive cross-party harassment, without any legitimate explanation for such conduct, were sufficient to show political animus.
Seventh Circuit
In McCauley v. City of Chicago, 671 F3d 611 (7th Cir. 2011), the Seventh Circuit held that the plaintiff did not state an equal protection claim against the City of Chicago in connection with the killing of plaintiff’s decedent by her ex-boyfriend. It found that the plaintiff did not plausibly state a policy or practice equal protection claim under Iqbal because the complaint contained only generalized allegations that the City failed to have specific policies in effect to protect victims of domestic violence from those who violate their parole or are under court orders for domestic violence.
Judge Hamilton dissented in part in a thoughtful opinion. 671 F.3d at 620. He argued that the plaintiff’s equal protection claim against the City should survive even under Iqbal because the complaint plausibly alleged that the City made a deliberate decision to minimize police protection available to women because of intentional animus against them.
Judge Hamilton then went on to list some of the problems posed by Iqbal to federal judges and litigants: its reasoning conflicted with Rule 9(b), with other recent Supreme Court decisions such as Leatherman and Swierkiewicz and with form complaints approved by the Supreme Court and Congress. He also criticized the Iqbal Court’s reliance on what he called the fact/conclusion dichotomy as highly subjective “and [it] returns courts to the long disapproved methods of analysis under the regime of code pleading.” 671 F.3d at 624. He further criticized that Court’s reliance on “judicial experience and common sense” as inviting highly subjective and inconsistent results. He concluded with two observations. First, under Iqbal it was questionable whether the amended complaint in Brown v. Bd. of Education would have survived. Second, federal courts should “freely” give leave to amend under Rule 15(a) where the interests of justice require.
Eighth Circuit
After removal to federal court, federal pleading rules control. Thus, in Christiansen v. West Branch Community School Dist., 674 F.3d 927 (8th Cir. 2012), the Eighth Circuit affirmed the dismissal of the plaintiff’s § 1983 claims for failure to state causes of action under the criteria of Iqbal. Plaintiff originally filed in Iowa state court and the defendants had removed to federal court, resulting in the dismissal. The court rejected the plaintiff’s contention that he was at least entitled to a remand to amend his complaint to comply with Iqbal rather than Iowa’s no-set-of-facts pleading. Plaintiff should have been aware of the possibility of removal to federal court and of the application of Iqbal, and he had enough time to amend his complaint if he had wanted to.
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New Supreme Court Decision on Free Speech and Government Funding: The Agency for International Development Case
The Supreme Court handed down an important First Amendment decision on June 20, 2013, that has attracted relatively little attention thus far. The decision is Agency for International Development v. Alliance for Open Society (PDF), 133 S. Ct. — (2013), No. 12-10 (Justice Scalia, joined by Justice Thomas, dissented; Justice Kagan recused herself).
In order to understand it, I’d like to provide the First Amendment background.
First Amendment Background
It is black letter First Amendment law that, with few exceptions, government cannot directly regulate the speech of its citizens because of disagreement with the viewpoint expressed. Ideally, government should be neutral when it comes to the content of speech. See my post of January 19, 2010, where I discuss the three dominant rationales of the First Amendment.
It is also black letter First Amendment law that government cannot compel its citizens to express political or other views. West Virginia Bd. of Education v. Barnette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S. 705 (1977).
Government Funding and Unconstitutional Conditions
What happens, however, where government does not do either of these directly but instead conditions the receipt of government funds in ways that affect the content of the recipient’s speech? To what extent should government be permitted to buy a citizen’s First Amendment (and other) rights by exercising the power of the purse? This implicates what is known as the doctrine of unconstitutional conditions.
Let me set the stage for Agency for International Development with several examples from earlier Supreme Court cases.
1. Suppose the federal government provides funds that may only be used by recipient organizations to promote childbirth, not abortion.
According to the Supreme Court in Rust v. Sullivan, 500 U. S. 173 (1991), this was a constitutional condition–it did not violate the First Amendment–because the government was entitled to insure that its funds were used by recipients for their intended purpose, the promotion of childbirth. In addition, nothing prevented the recipient from obtaining funding from other private sources that could be used for abortion counseling, so long as the two activities, childbirth and abortion counseling, were kept separate.
2. Suppose the federal government not only provides funds for a particular purpose, say, paying for legal services for indigents, but also imposes a condition on the recipient that it not take a particular position in the course of providing those legal services, even if taking a particular position in the course of providing legal services is separately funded by private sources.
Notice how this condition goes beyond the use of the funds themselves, thereby making it more suspect under the First Amendment.
According to the Supreme Court in Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001), this condition on funding violated the First Amendment. It was an unconstitutional condition.
The Agency for International Development Case
Finally, consider the Agency for International Development case. Here the United States, as part of a program to eliminate HIV/AIDS worldwide, funded various non-governmental organizations (NGOs) operating around the world to participate in this program. However, two conditions on receiving funding were imposed. The first condition posed no First Amendment problem under Rust: no funds could be used to promote or advocate the legalization or practice of prostitution and sex trafficking.
However, the second condition did present a problem: no funds could be used by any recipient organization that did not have a policy expressly opposing prostitution and sex trafficking.
Various recipient organizations challenged the second condition under the First Amendment because, if they complied with it, they would, first, alienate certain host governments and, second, they would have to censor privately funded discussions in publications, conferences and other forums.
In an opinion by Chief Justice Roberts, the Supreme Court held this second condition unconstitutional. It went well beyond the funding condition upheld in Rust. And it even went beyond the funding condition struck down in Legal Services Corporation. It did not just prohibit recipients from expressing a position with which the federal government disagreed, but it required them affirmatively to take the government’s position as their own. This requirement conflicted with the First Amendment’s prohibition against compelled speech.
As Chief Justice Roberts put the matter, “It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.”
In context, then, this was not a difficult First Amendment case, but it was an important one.
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