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.
The Fisher Case on Affirmative Action and the Shelby County Case on Voting Rights: Two of a Kind
The Supreme Court handed down two important decisions on race in this last week of its 2012 Term that have more in common than appears on first reading.
Fisher
The first is Fisher v. University of Texas (PDF), 133 S. Ct. — (2013), where the Court held, 7-1, in an opinion by Justice Kennedy, that the lower federal courts did not properly apply the required strict scrutiny to the University’s affirmative action plan.
Rather than deferring to University administrators and their good faith regarding the question of whether the affirmative action plan was narrowly tailored to accomplish the compelling interest in diversity, the lower federal courts should have instead engaged in “stricter” scrutiny and asked whether the University adequately considered the availability of race-neutral alternatives to its affirmative action plan.
In so ruling, the Court did not have to address the question raised by Justices Scalia and Thomas in their separate concurring opinions as to the propriety of using race at all in university admissions for diversity purposes.
Shelby County
The second is Shelby County v. Holder (PDF), 133 S. Ct. — (2013), a blockbuster decision where the Court held, 5-4, in an opinion by Chief Justice Roberts, that Congress had exceeded its powers under section 2 of the Fifteenth Amendment when it re-enacted the pre-clearance coverage formula of section 4 of the Voting Rights Act of 1965 because that coverage formula was based on outdated data regarding voting and race in the covered Southern states.
Fisher is a Fourteenth Amendment equal protection case and Shelby County is a Fifteenth Amendment case. But the two cases obviously have race in common.
Increasing Supreme Court Discomfort with Affirmative Action
But they also have in common the Court’s increasing discomfort with affirmative action plans involving race. Fisher, of course, expressly dealt with an affirmative action plan for university admissions.
But I read Shelby County as similarly involving a kind of affirmative action plan, this one involving a Congressional remedy directed against states and local governments that have previously discriminated on the basis of race in voting.
Reluctance to Defer to Politically Accountable Bodies
Perhaps more deeply, both cases demonstrate the Court’s unwillingness to defer to politically accountable bodies of government at all levels–federal, state and local–that have enacted such plans in order to provide for diversity and remedy past racial discrimination.
The Court has apparently concluded that “enough is enough” because the United States is sufficiently close to a “color blind” society to justify much “stricter” scrutiny–which may be fatal in fact–of such admissions and voting plans.
Of course, whether this is an accurate description of our society remains a matter of considerable debate.
Background
I previously blogged on the basics of affirmative action on November 5, 2009. Then, on October 10, 2012, I posted two short videos of interviews on Fisher. You might find these informative.
A Section 1983 Primer (10): Statutes of Limitations and Accrual After Heck v. Humphrey
In my post of October 27, 2011, entitled A Section 1983 Primer (5): Statutes of Limitations, I blogged about statutes of limitations in section 1983 cases. There I briefly discussed the complicated issues of (1) choosing the right state statute of limitations, (2) accrual of section 1983 claims and (3) when section 1983 claims are tolled.
In the course of my discussion of accrual, I wrote the following:
There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. See also the important 2007 decision in Wallace v. Kato, 549 U.S. 384 (2007), dealing with Heck, accrual and section 1983 false arrest/imprisonment claims.
I want to elaborate on this a bit more.
The Basics of Heck v. Humphrey
At the outset, it is crucial to understand the important distinction between federal habeas corpus and section 1983 claims. Federal habeas corpus challenges, brought pursuant to 28 U.S.C. sec. 2254, are challenges to the fact or duration of confinement and exhaustion of state judicial remedies is required .
In contrast, section 1983 claims are directed against conditions of confinement (such as allegedly inadequate medical care that violates the Eighth Amendment), and exhaustion of state judicial remedies is not required. See my post of November 29, 2009, on the seminal decision in Monroe v. Pape, 365 U.S. 167 (1961).
In Heck, the Court dealt with an issue at the “intersection” of habeas corpus and section 1983. The best way to get at this “intersection” is with two hypotheticals. Read the rest of this entry »
DeShaney in the Circuits (IV): The Seventh Circuit’s Reformulation
My last post was on DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), and the Fifth Circuit‘s restrained approach to affirmative duties.
So I thought it might also be useful to mention the Seventh Circuit‘s recent attempt at reformulating some of the doctrinal aspects of affirmative duties.
The Seventh Circuit’s Slade opinion
Slade v. Bd. of School Directors of City of Milwaukee, 2012 WL 6701869, *1 (7th Cir. 2012), involved the drowning of a public school student at a class outing. His parents and estate then brought a § 1983 substantive due process claim against various defendants.
The Seventh Circuit, in an opinion by Judge Posner, affirmed the district court’s grant of summary judgment for the defendants because there was at most gross negligence, which was insufficient as a matter of substantive due process.
In the course of his discussion, however, Judge Posner restated the applicable substantive due process test as follows: “A state does not deprive a person of his life in violation of the Fourteenth Amendment merely by failing to prevent his dying, but does violate the amendment if the death was caused by the reckless act of an employee of the state acting within the scope of his or her employment.” Read the rest of this entry »
DeShaney in the Circuits (III): The Fifth Circuit En Banc Holds the Line
Affirmative Duty Issues After DeShaney v. Winnebago County, 489 U.S. 189 (1989)
I have blogged twice previously about DeShaney affirmative due process duty issues in the circuits. The first time was on August 22, 2011, and the second time was on June 1, 2012.
DeShaney issues continue to arise in the circuits in all-too-often tragic circumstances. I came across the following Fifth Circuit en banc decision as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012), published by West.
Doe ex rel Magee v. Covington County School Dist.
A panel of the Fifth Circuit addressed this question: “Are there circumstances under which a compulsory-attendance, elementary public school has a ‘special relationship’ with its nine-year-old students such that it has a constitutional ‘duty to protect’ their personal security?” The panel answered in the affirmative as a matter of first impression in the circuit. Doe ex rel Magee v. Covington County School Dist., 649 F.3d 335, 338 (5th Cir. 2011) , reh’g en banc granted and rev’d, 675 F.3d 849 (5th Cir. 2012)(en banc).
The plaintiffs, the father and grandmother of a nine-year-old girl, on whose behalf they acted, sued a county school district, board of education, school officials and others in connection with the repeated release of the girl into the custody of an unauthorized adult for the purpose of facilitating his taking her off school premises, where he raped her. The defendants thereby allegedly acted with deliberate indifference to her safety. The Fifth Circuit panel determined that there was a special relationship in this case between the school and the child because it repeatedly handed her over to the unauthorized adult during school hours, surrendering to him the school’s statutory full and exclusive custody over her. The school isolated her from her teachers and classmates without any school supervision and against her will and that of her grandmother (her legal guardian). It thus failed in its duty “to protect her from such a quintessential and widely known threat to young children as pedophilia.” Accordingly, the plaintiffs’ complaint survived the defense motion to dismiss under Rule 12(b)(6).
However, because this was a case of first impression in the circuit, the individual defendants sued in their individual capacities were protected by qualified immunity: the law was not clearly established when these events occurred in 2007. Indeed, some Fifth Circuit decisions at the time may have suggested that schools could never be in a special relationship with their students.
Judge King dissented, arguing that the panel got the special relationship issue wrong: “Our en banc court, and every other circuit to consider the issue, has unequivocally concluded that public school students do not have such a [protected liberty interest in remaining safe at school] under the Constitution. … The majority’s decision is an unwarranted expansion of the ‘special relationship’ exception to the general rule that state actors are not required to protect individuals from private harm….” Read the rest of this entry »
Class-of-One Equal Protection Claims: Uncertainty in the Seventh Circuit
Class-of-One Equal Protection Claims
It may surprise some of you to know that one can have a successful equal protection claim without being a member of a racial, gender, ethnic or other group.
In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), a zoning case originating in the Seventh Circuit, the Supreme Court held that an equal protection claim can be based on arbitrary and capricious discrimination against an individual. Thereafter, in Engquist v. Oregon Dep’t of Agric., 553 U.S. 591 (2008), the Court excluded public employees from such class-of-one equal protection coverage. Otherwise, however, class-of-one equal protection claims are available.
Unfortunately, the Court in Olech did little to explain what the elements of such a claim are and whether such a plaintiff must allege and prove some sort of impermissible motive in order to state a class-of-one equal protection claim. This has created uncertainty in the circuits, as demonstrated by a recent decision of the Seventh Circuit.
Enter the Seventh Circuit En Banc
In Del Marcelle v. Brown County Corp., 680 F.3d 887 (7th Cir. 2012)(en banc), aff’g dismissal of complaint by equally divided court, the plaintiff sued law enforcement officers alleging that they failed to respond to his complaints that gangs were harassing him and his wife, thus forcing them to sell their home and move to another village “with the gangs in hot pursuit.” Read the rest of this entry »
Certiorari Granted in Madigan v. Levin: An Important Section 1983/ADEA Preclusion Case
NOTE: ON OCTOBER 15, 2013, AFTER ORAL ARGUMENT IN THE PRIOR WEEK, THE SUPREME COURT DISMISSED THE CERTIORARI PETITION IN LEVIN AS IMPROVIDENTLY GRANTED
Certiorari Granted in Madigan v. Levin
The Supreme Court granted certiorari on March 18, 2013, in Levin v. Madigan, 692 F.3d 607 (7th Cir.), cert. granted sub nom. Madigan v. Levin, 132 S. Ct. — (2013), an important section 1983/ADEA preclusion case.
In Levin, the Seventh Circuit held, as a matter of first impression in its circuit, that a terminated Illinois Assistant Attorney General could use section 1983 to sue state law enforcement officials for damages in their individual capacities for an alleged equal protection age discrimination violation. It rejected the defense argument that the existence of a comprehensive regulatory scheme under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sec. 621 et. seq., demonstrated Congressional intent to limit such claims to the ADEA and thereby to preclude section 1983 equal protection age discrimination claims. Judge Kanne wrote the opinion, joined by Judges Posner and Bauer.
In so ruling, the Seventh Circuit attracted the Supreme Court’s attention because it took a position on this preclusion issue contrary to that of the District of Columbia, First, Fourth, Fifth, Ninth and Tenth Circuits, thus creating a circuit split.
Two Supreme Court Precedents
There are only two directly relevant Supreme Court precedents on this preclusion issue.
The first is Smith v. Robinson, 468 U.S. 992 (1984), where the Court held that Congress intended the Education of the Handicapped Act (EHA), 20 U.S.C. sec. 1400 et. seq., to preclude section 1983 equal protection claims to publicly financed special education. Congress thereafter superseded this decision by enacting the Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372.
The second is much more recent. In Fitzgerald v. Barnstable School Comm., 555 U.S. 246 (2009), the Court held that Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681(a), did not preclude a section 1983 equal protection sex discrimination claim. In reaching this conclusion, the Court focused on the important differences between the scope and elements of Title IX claims and those of section 1983 equal protection sex discrimination claims.
In both cases, the Court was attempting to discern Congressional intent where Congress had not said anything explicit about this preclusion issue. The Supreme Court in Levin will attempt to do the same.
Comments
1. If Congress had declared explicitly that the ADEA either did or did not preclude section 1983 equal protection age discrimination claims, that would have been the end of it. The section 1983 equal protection/ADEA issue arose only because Congress was silent on the matter.
2. There are similarities between this preclusion issue and the use of section 1983 to redress certain federal statutory violations–what I call “laws” actions. Still, it should be harder to demonstrate Congressional intent to preclude a section 1983 constitutional claim than to demonstrate that Congress intended that particular federal statutory violations not be actionable for damages under section 1983.
To put this point somewhat differently, the presumption that section 1983 is available should be stronger for constitutional claims than for federal statutory claims in “laws” actions.
3. Levin will be argued and decided in the Court’s 2013 Term.
See generally on “laws” actions and preclusion of section 1983 constitutional claims, chapter 2 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012)(West), also available on WESTLAW and as an ebook.
UPDATE: After I published this post, I discovered that Murray Duncan, a Chicago-Kent student, published a note on this same case. I think you will find it of interest, whatever your view of the merits. It is available here: http://www.kentlaw.iit.edu/Documents/Academic%20Programs/7CR/v8-1/duncan.pdf
All My Posts Through 4-10-13
It has been a while since I reorganized all of my posts (including several videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 100 posts.
I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility.
Instead, they are intended to serve the continuing educational needs of lawyers, law students, academics and the public at large.
I thank all of you for your growing support of this blog.
Sheldon Nahmod (snahmod@kentlaw.edu)
What follows is a list comprising all of my posts (with links) divided into the following four parts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION
PART I: SECTION 1983
Section 1983 Supreme Court Decisions–2009: A Video Presentation
A Section 1983 Podcast: Damages and Procedural Defenses
From Monroe to Connick: Podcast
Article: The Long and Winding Road from Monroe to Connick
“Section 1983 Is Born”: A Working Paper
A Section 1983 Primer (1): History, Purposes and Scope
A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape
A Section 1983 Primer (3): Constitutional States of Mind
A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule
A Section 1983 Primer (5): Statutes of Limitations
A Section 1983 Primer (6): Claim and Issue Preclusion
A Section 1983 Primer (7): Introduction to Absolute Individual Immunity
A Section 1983 Primer (8): Absolute Legislative Immunity
Nahmod Law 