Wood v. Moss Reply Brief for Petitioners

    No. 13-115

M  tfje Supreme Court of ttje Umteb g>tate*

T im  W o o d  a n d  R ob  S a v a g e , p e t it io n e r s

M ic h a e l  M o s s , e t  a l .

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

Donald B. Verrilli, Jr. 
Solicitor General 

Counsel of Record 
Department o f Justice 
Washington, D.C. 20530-0001 
SupremeCtBriefs@2(,sdoj- qov 
(202) 514-2217



TABLE OF CONTENTS
Page

A. Secret Service crowd-control measures supported by a
legitimate presidential-security rationale do not violate 
clearly established First Amendment rights...................3

B. Respondents’ complaint does not plausibly allege that
petitioners lacked a valid security rationale for moving 
respondents.................................................................... 9

TABLE OF AUTHORITIES

Cases:

Anderson v. Creighton, 483 U.S. 635 (1987)..................... 4
Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011)....................... 6
Ashcroft v. Iqbal, 556 U.S. 662 (2009)....... 3, 9,10,17,19, 20
BellAtl. Corp. v. Twombly, 550 U.S. 544 (2007)...........9,10
Bivens v. Six Unknown Named Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971)...................... 1
Brosseau v. Haugen, 543 U.S. 194 (2004)..................... 4, 8
Hunters. Bryant, 502 U.S. 224 (1991).............................. 8
Reichle v. Hmvards, 132 S. Ct. 2088 (2012)....................6, 7
Rubin v. United States, 525 U.S. 990 (1998)................... 16
Saucier v. Katz, 533 U.S. 194 (2001)............................. 4, 7
Sherrill v. Knight, 569 F.2d 124 (D.C. Cir. 1977).............. 8
Snyder v. Phelps, 131 S. Ct. 1207 (2011)...........................8
United States v. Armstrong, 517 U.S. 456 (1996)............17
Watts v. United States, 394 U.S. 705 (1969)...................... 7

Constitution, statute and rules:

U.S. Const.:
Amend. 1..........................................................3, 4, 7, 8
Amend. IV.... ..............................................................7

18U.S.C. 3056(a)(1)........................................................ 17

(I)



II

Rules—Continued: Page

Fed. R. Civ. P.:
Rule 8(a)(2)..................................................................9
Rule 9(b).........................................     10



3n tf)e Supreme Court of tfje Untteb i£>tate£

No. 13-115
T im  W oo d  a n d  R ob  S a v a g e , p e t it io n e r s  

v.
M ic h a e l  M o s s , e t  a l .

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

Respondents provide no sound basis for subjecting 
petitioners, two Secret Service agents on the Presi­
dent’s protective detail, to the burdens of litigation 
and to potential personal liability for damages (includ­
ing punitive damages) under Bivens v. Six Unknown 
Named Agents o f Federal Bureau o f Narcotics, 403 
U.S. 388 (1971), in the circumstances of this case. 
Disavowing at least one of the two bases for the Ninth 
Circuit’s decision, respondents now acknowledge that, 
in order to state a claim for a violation of clearly es­
tablished law, they must sufficiently allege that peti­
tioners moved them “specifically because of their 
viewpoint, and without a valid security reason.” Resp. 
Br. 40; see id. at 12, 41-42. Respondents cannot meet 
that burden.

Under the facts alleged in the complaint, petition­
ers issued a facially viewpoint-neutral order to clear

(1)



2

“all persons” from a street adjacent to an alley leading 
to the open-air patio where the President was dining. 
Pet. App. 177a. Respondents do not meaningfully dis­
pute that, while on that street, members of their 
group (and anyone who had mixed in with their group) 
were within explosive range of the President. See Pet. 
Br. 44; Resp. Br. 24. Respondents cannot dispute that 
simply moving them to the next block (Fourth Street), 
as petitioners originally directed, would have left their 
group closer to the President than the pro-Bush de­
monstrators to the west of the Inn. Pet. Br. 4-5 & Di­
agram A. And respondents no longer dispute that, 
once they were shifted to the next block, petitioners 
were entitled to move them a block farther (to Fifth 
Street) in order to avoid giving them a direct line of 
sight to the wooden fence behind which the President 
was dining. See Pet. Br. 7; id. at 7 (Diagram B); 
Resp. Br. 22.

Nothing in the complaint plausibly alleges that pe­
titioners lacked a “valid security reason,” Resp. Br. 
40, to clear the street. Even the Ninth Circuit, in find­
ing an earlier version of respondents’ complaint insuf­
ficient, recognized that simply moving respondents to 
the next block—which is all that respondents now con­
tend to have been unconstitutional— “is not a plausible 
allegation of disparate treatment” as compared to the 
treatment of either the pro-Bush demonstrators or 
the diners and guests at the Inn. 572 F.3d at 971. 
And respondents’ reliance on the alleged actions of 
other Secret Service agents at other times and places 
to support an inference that these particular petition­
ers had an invidious speech-suppressive motive cannot 
be squared with this Court’s rejection of vicarious



3

Bivens liability in Ashcroft v. Iqbal, 556 U.S. 662 
(2009).

In short, even if respondents’ allegations are “con­
sistent with” unlawful conduct, Iqbal, 556 U.S. at 681, 
those allegations fail to refute the “obvious alternative 
explanation,” id. at 682 (citation omitted), for petition­
ers’ actions here, namely, that they sought to establish 
an effective security perimeter to protect the Presi­
dent during his unscheduled, last-minute stop for din­
ner on an outdoor restaurant patio. The Court should 
reverse and end the prolonged litigation to which peti­
tioners have been subjected.

A. Secret Service Crowd-Control Measures Supported 
By A Legitimate Presidential-Security Rationale Do 
Not Violate Clearly Established First Amendment 
Rights

In order to survive a motion to dismiss, a plaintiff 
in a Bivens suit must “plead factual matter that, if 
taken as true, states a claim that [the defendant offi­
cials] deprived him of his clearly established constitu­
tional rights.” Iqbal, 556 U.S. at 666. Defining re­
spondents’ “clearly established constitutional rights” 
is thus critical to determining the sufficiency of their 
complaint. See id. at 675 (“ [W]e begin by taking note 
of the elements a plaintiff must plead to state a claim 
of unconstitutional discrimination against officials en­
titled to assert the defense of qualified immunity.”). 
Although respondents’ brief at points takes an overly 
broad view of clearly established law, respondents ul­
timately recognize that, in order to overcome petition­
ers’ qualified-immunity defense, their complaint must 
sufficiently allege that petitioners moved them “spe­
cifically because of their viewpoint, and without a valid 
security reason.” Resp. Br. 40; see ibid, (describing



4

that as “ [t]he issue in this case”); see also id. at 12 
(same); id. at 41-42 (similar). So long as petitioners 
did have “a valid security reason” for moving re­
spondents, they did not violate any clearly established 
First Amendment right.

1. This Court has “emphasized” that the qualified- 
immunity inquiry requires a “ ‘particularized’ ” analy­
sis of whether the “ ‘contours of the right’ ” asserted by 
the plaintiff were “ ‘sufficiently clear that a reasonable 
official would understand that what he [was] doing 
violate[d] that right.’ ” Saucier v. Katz, 533 U.S. 194, 
202 (2001) (quoting Anderson v. Creighton, 483 U.S. 
635, 640 (1987)). Accordingly, as the opening brief de­
tails (at 22-25), the Court has consistently framed the 
right at issue for purposes of qualified immunity not 
“as a broad general proposition,” but instead in rela­
tion to the “specific context of the case.” Brosseau v. 
Haugen, 543 U.S. 194, 198 (2004) (per curiam) (quot­
ing Saucier, 533 U.S. at 201).

The court of appeals here deviated significantly 
from that approach. In its view, Secret Service agents 
violate clearly established First Amendment rights 
simply by “explicitly treating] pro- and anti-Bush 
demonstrators differently,” regardless of the agents’ 
reasons for doing so. Pet. App. 35a. The court ac­
cordingly held—separate and apart from any allega­
tions that petitioners acted with a viewpoint- 
discriminatory motive, id. at 38a-43a—that a conten­
tion that respondents “were moved to a location where 
they had less opportunity than the pro-Bush demon­
strators to communicate their message to the Presi­
dent and those around him” would in itself “support a 
plausible claim of viewpoint discrimination.” Id. at 
38a. The court then proceeded to deny petitioners



5

qualified immunity on the ground that “ [i]t is ‘beyond 
debate’ that, particularly in a public forum, govern­
ment officials may not disadvantage speakers based 
on their viewpoint.” Id. at 45a; see id. at 49a.

As the opening brief explains (at 25-37), the court 
of appeals erred in concluding that the existence of a 
general right to be free from “viewpoint discrimina­
tion in a public forum,” Pet. App. 49a, clearly estab­
lished the more specific right of respondents in this 
case to stand within a particular distance of the Presi­
dent. Respondents do not meaningfully argue other­
wise. They instead steer clear of the court of appeals’ 
theory by emphasizing that their own theory of the 
case is that petitioners moved them “for purely politi­
cal reasons.” Resp. Br. 15. There is accordingly no 
dispute that the court of appeals erred when it sug­
gested that petitioners could be subject to liability 
merely based on allegations that groups with differing 
viewpoints were placed at different distances from the 
President.

2. Although respondents do not repeat that partic­
ular error, portions of their brief nevertheless contain 
the same “familiar qualified immunity errors,” Pet. 
App. 22a (O’Scannlain, J., dissenting from the denial 
of rehearing en banc), that infected the Ninth Cir­
cuit’s analysis. Like the court of appeals, respondents 
appear to believe (Br. 32-37) that decisions of this 
Court describing general viewpoint-neutrality princi­
ples in other contexts necessarily compel a particular 
legal rule in the distinct context of crowd control dur­
ing a last-minute, unscheduled stop by the President.1

1 Amicus NAACP Legal Defense and Educational Fund’s discus­
sion of viewpoint-discrimination law (Br. 25-34) overlooks the qual­
ified-immunity context of this case entirely.



6

Respondents’ one-size-fits-all approach to view­
point discrimination cannot be reconciled with this 
Court’s decision in Reichle v. Hoivards, 132 S. Ct. 
2088 (2012). The plaintiff in that case claimed that 
two Secret Service agents had engaged in a form of 
viewpoint discrimination by arresting him “in retalia­
tion for criticizing the Vice President.” Id. at 2092. 
The Court concluded that, even assuming the agents 
had in fact arrested the plaintiff in retaliation for his 
viewpoint, the agents were entitled to qualified im­
munity. Id. at 2093-2097. Emphasizing the need to 
define the constitutional right at issue in a “particular­
ized” and “specific” way, the Court reasoned that it 
“has never recognized a First Amendment right to be 
free from a retaliatory arrest that is supported by 
probable cause; nor was such a right otherwise clearly 
established at the time of [the plaintiff’s] arrest.” Id. 
at 2093-2094 (internal quotation marks and citation 
omitted). Respondents correctly point out (Br. 34-35) 
that the plaintiff in Reichle touched the Vice Presi­
dent, while respondents here did not touch the Presi­
dent. But the relevant point for purposes of qualified 
immunity is the level of specificity at which the Court 
defined the viewpoint-discrimination right at issue. 
Just as “the general right to be free from retaliation 
for one’s speech” was not specific enough in Reichle, 
132 S. Ct. at 2094, so too the general “principle of 
viewpoint neutrality” (Resp. Br. 33) is not specific 
enough here. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 
2084 (2011) (“The general proposition, for example, 
that an unreasonable search or seizure violates the 
Fourth Amendment is of little help in determining 
whether the violative nature of particular conduct is 
clearly established.”).



7

This Court has previously considered as part of the 
“circumstances” relevant to whether a constitutional 
right was clearly established “the duty to protect the 
safety and security of the Vice President of the United 
States from persons unknown in number.” Saucier, 
533 U.S. at 209. No sound reason exists for disregard­
ing that same duty (as applied to the President rather 
than the Vice President) here. An agent in petition­
ers’ position could reasonably have believed that it 
was lawful to move respondents to the next block, so 
long as he had a legitimate security rationale for doing 
so. That is true even if respondents’ viewpoint also 
factored into the decisionmaking process. As the 
opening brief explains (at 32-36), consideration of 
viewpoint is not invariably unlawful. A police officer 
who “bear[s] animus toward the content of a suspect’s 
speech,” for example, is nevertheless entitled to “ar­
rest [a] suspect because his speech * * * suggests
a potential threat.” Reichle, 132 S. Ct. at 2095. Par­
ticularly given that backdrop, a Secret Service agent 
could reasonably conclude that he may take speech 
into account in assessing how close someone should be 
to the President; that any animus he might have to­
ward the speech would not necessarily preclude him 
from taking legitimate security precautions; and that 
even if his motives are mixed, the First Amendment 
does not categorically foreclose him from acting to ad­
vance the Nation’s “overwhelming” interest “in pro­
tecting the safety of its Chief Executive,” Watts v. 
United States, 394 U.S. 705, 707 (1969) (per curiam). 
See Reichle, 132 S. Ct. at 2097 (Ginsburg, J., concur­
ring in the judgment) (recognizing that Secret Service 
agents are “duty bound to take the content of” speech



8

“into account in determining” whether someone poses 
“an immediate threat” to a protectee’s security).

Respondents attack a straw man when they sug­
gest (Br. 33) that petitioners seek a “Secret Service 
exception to the First Amendment.” The point is not 
that the First Amendment is wholly inapplicable to 
the Secret Service, but that application of the First 
Amendment is context-specific, see, e.g., Snyder v. 
Phelps, 131 S. Ct. 1207, 1220 (2011), and the qualified- 
immunity inquiry even more so, see, e.g., Brosseau, 
543 U.S. at 198. Respondents cannot identify any case 
(let alone any precedent of the Ninth Circuit or this 
Court) that would have given petitioners sufficient no­
tice that their actions in this case, if undertaken at 
least in part to further a legitimate security interest, 
would amount to unconstitutional viewpoint discrimi­
nation. See Pet. Br. 25-28 (discussing cases cited at 
Resp. Br. 33-37); see also Sherrill v. Knight, 569 F.2d 
124, 126 (D.C. Cir. 1977) (challenge not to crowd con­
trol, but to procedures and standards for issuing 
White House press passes) (cited at Resp. Br. 34). 
Petitioners accordingly should not face potential per­
sonal liability, and the burdens of litigation, unless re­
spondents can sufficiently plead that petitioners were 
acting solely with a viewpoint-discriminatory motive 
and lacked any legitimate security justification for 
their actions.2 See Hunter v. Bryant, 502 U.S. 224, 
229 (1991) (per curiam) (recognizing that the protec­
tions of qualified immunity are “nowhere more im­
portant than when the specter of Presidential assassi­
nation is raised”).

2 That is true whether the claim is denominated as a claim of 
viewpoint discrimination, “content discrimination,” or “discrimina­
tion against expression.” See Resp. Br. 30 n.6.



9

B. Respondents’ Complaint Does Not Plausibly Allege 
That Petitioners Lacked A Valid Security Rationale 
For Moving Respondents

To prevail, respondents must allege that petition­
ers moved respondents “specifically because of their 
viewpoint, and without a valid security reason.” Resp. 
Br. 40. As this Court’s recent decisions interpreting 
Federal Rule of Civil Procedure 8(a)(2) make clear, 
respondents have failed to do so.

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 
(2007), this Court concluded that a complaint whose 
allegations were “consistent with an unlawful agree­
ment * * * nevertheless * * * did not plausi­
bly suggest an illicit accord because it was not only 
compatible with, but indeed was more likely explained 
by, lawful * * * behavior.” Iqbal, 556 U.S. at 680
(describing Twombly). In Iqbal, the Court found 
claims of racial and religious discrimination by high- 
ranking government officials to be implausible, even 
“ [t]ak[ing] as true” allegations that one official “di­
rected]” the “arrest[] and detention of] thousands of 
Arab Muslim men . . .  as part of [the] investiga­
tion of the events of September 11” and that both offi­
cials “approved” a “policy of holding post-September- 
11th detainees in highly restrictive conditions of con­
finement until they were ‘cleared’ by the FBI.” Id. at 
681 (citation omitted); see id. at 669. The Court ex­
plained that “ [a]s between” the “purposeful, invidious 
discrimination [the plaintiff] asks us to infer” and the 
“ ‘obvious alternative explanation’ ” of a “nondiscrimi- 
natory intent to detain aliens who were illegally pre­
sent in the United States and who had potential con­
nections to those who committed terrorist acts,” the



10

former was “not a plausible conclusion.” Id. at 682 
(quoting Twombly, 550 U.S. at 567).

As the opening brief explains (at 38-52), the ap­
proach set forth in Iqbal and Twombly requires dis­
missal of respondents’ complaint. Like the complaint 
in Iqbal, the complaint here provides allegations 
merely “consistent with” a theory that government 
officials acted with a discriminatory purpose. 556 U.S. 
at 681. “But given more likely explanations, they do 
not plausibly establish this purpose.” Ibid. In partic­
ular, petitioners’ proffered security rationale for mov­
ing respondents (to get them out of weapons range of 
the President) is an “obvious alternative explanation” 
for petitioners’ actions. Id. at 682 (citation omitted). 
In light of that “obvious alternative explanation,” re­
spondents’ allegations, whether taken individually or 
taken together, do not support a “plausible conclu­
sion,” ibid., that petitioners were entirely “ivithout a 
valid security reason” to act as they did, Resp Br. 40.3

3 Iqbal rejected a contention, essentially identical to an argument 
respondents make here (Br. 26), that the pleading standard it ap­
plied was inconsistent with Federal Rule of Civil Procedure 9(b). 
556 U.S. at 686-687. This case does not require the Court to ad­
dress precisely how much “more likely,” id. at 680, 681, an alterna­
tive explanation must be to render a plaintiff’s theory implausible. 
Although some amici attempt to minimize Iqbal’s reference to 
“more likely” alternative explanations, they acknowledge that a 
complaint should be dismissed when there is an “obvious” alterna­
tive to the theory of liability advanced by the plaintiff. See Pub. 
Justice Amicus Br. 17; NAACP Amicus Br. 11. Here, it is obvious 
from the face of the complaint that petitioners had a legitimate 
security rationale for moving respondents, and the complaint thus 
fails to plead facts sufficient to divest petitioners of their qualified 
immunity. The heightened showing that qualified immunity re­
quires in this context, in combination with the obvious existence of 
a security rationale on the facts as alleged, differentiates this case



11

Comparison to the pro-Bush demonstrators. For 
the reasons explained in the opening brief (at 30-31, 
44-45), respondents’ contention that they were “treat­
ed differently than the similarly situated pro-Bush 
demonstrators,” Resp. Br. 20 (emphasis omitted), is 
misconceived. As the President’s motorcade proceed­
ed to the Inn, the two groups had equal access to the 
President from opposite sides of Third Street, and 
they were able to demonstrate as they saw fit. Pet. 
App. 175a. Once the motorcade passed and the Presi­
dent entered the outdoor patio for dinner, however, 
the two groups were not “similarly situated.” Re­
spondents were on the street directly in front of both 
the Inn and an alley leading to the patio where the 
President was dining. Id. at 212a. The pro-Bush de­
monstrators were on the next block over, shielded 
from the President’s location by a large building (the 
U.S. Hotel). Ibid. Petitioners thus had legitimate 
reasons to be substantially more concerned about the 
potential threat posed by respondents’ group.

Respondents continue to assert (Br. 23) that they 
were not “in handgun or explosive range of the Presi­
dent” when they were on the street in front of the Inn. 
But as the opening brief observed (at 44-45), that con- 
clusory assertion is belied by the diagram in respond­
ents’ own complaint, which shows that members of re­
spondents’ group (and anyone who might have infil­
trated that group) were close enough to throw an ex­
plosive that could have harmed the President. Re­
spondents’ brief does not meaningfully deny or refute 
that observation, but instead simply asserts that any 
focus on respondents’ weapons-range proximity to the

from the mine run of civil-rights cases with which the amici are 
concerned. See NAACP Amicus Br. 12-21.



12

President “misses the point.” Resp. Br. 24. Respond­
ents’ weapons-range proximity to the President, how­
ever, corroborates petitioners’ stated reason for mov­
ing them, namely, that petitioners “did not want any­
one within handgun or explosive range of the Presi­
dent,” Pet. App. 177a.4

Respondents emphasize that they were “moved to a 
location more than twice as far from the Inn” as the 
location of the pro-Bush demonstrators. Resp. Br. 20; 
see, e.g., id. at 22. But as respondents themselves 
recognize (id. at 22), their ultimate location is not the 
proper focus of the inquiry. The complaint alleges 
that respondents’ group was initially moved only to 
the next block (Fourth Street). Pet. App. 177a. Ac­
cording to the map attached to the complaint (id. at 
212a, Pet. Br. 4 (Diagram A)), that location was still 
nearer to the President than the position of the pro- 
Bush demonstrators. As the opening brief explains 
(at 5-7 & Diagram B, 44-45), respondents’ new location 
itself provided a line of sight to the patio fence. Re­
spondents were “subsequently” moved a block farther 
back (to Fifth Street). Pet. App. 177a. Respondents 
do not contest the necessity of that second move. See 
Resp. Br. 22. They instead characterize the issue as a

4 Respondents suggest in passing (Br. 21-22) that if removing 
everyone from weapons-range proximity were petitioners’ actual 
rationale, petitioners could simply have cleared “the sidewalk out­
side the mouth of th[e] alley.” But blocking off part of the side­
walk with no natural boundaries would have required diverting 
additional resources; taking that approach would have been less 
secure because members of respondents’ group would still have 
been only “a few steps” from where they could potentially cause 
serious harm, id. at 21; and such after-the-fact micromanagement 
of Secret Service agents’ on-the-spot security precautions should 
not provide a basis for subjecting those agents to Bivens liability.



13

“red herring” and emphasize that their theory of the 
case is that petitioners acted unconstitutionally when 
petitioners initially moved them over to the next 
block. Respondents thus appear to recognize that, if 
petitioners were entitled to clear the street adjacent 
to the Inn and the alley, they were not required to po­
sition respondents an equivalent distance from the Inn 
as the pro-Bush demonstrators.

The initial move—which left respondents closer to 
the President than were the pro-Bush demonstrators 
—does not plausibly establish that petitioners lacked 
a valid security rationale and acted solely with the in­
tent to mute respondents’ speech. As the court of ap­
peals recognized in rejecting respondents’ earlier 
complaint, alleging that petitioners moved respond­
ents “to a location situated a comparable distance 
from the Inn as the other demonstrators, thereby es­
tablishing a consistent perimeter around the Presi­
dent” is “not a plausible allegation of disparate treat­
ment.” 572 F.3d at 971. The court explained that “ [i]f 
[petitioners’] motive in moving [respondents] away 
from the Inn was—contrary to the explanation they 
provided to state and local police—suppression of [re­
spondents’] 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 farther from the 
Inn th[a]n the position that the pro-Bush demonstra­
tors occupied.” Ibid. Respondents have never alleged 
that the President, who was dining on an outdoor pa­
tio, could not hear their demonstration from the next 
block (or even that he could not hear it from their final 
location on Fifth Street), see Pet. Br. 31 n.4, and an 
inference that the President could not hear a group of



14

200 to 300 people only half a block away would be un­
reasonable.

Respondents briefly hypothesize (Br. 24-25) that 
petitioners should have been more concerned about 
the pro-Bush demonstrators than about their group, 
on the theory that “someone intent on doing harm 
would * * * more likely conceal himself or herself
among a group of the President’s supporters.” Alt­
hough an assailant might conceivably adopt that 
strategy, the Secret Service protects the President 
not only from sophisticated assassins (who could be 
anywhere) but also from people who might lash out at 
him, particularly if urged to do so by a group of like- 
minded people. See Pet. Br. 34 & n.5 (discussing at­
tacks by protesters). Petitioners thus had an entirely 
valid security reason for clearing the street adjacent 
to the alley and the Inn in order to ensure that both 
groups of demonstrators were out of weapons range.

The timing o f petitioners’ order. The allegation 
that the President sat down to dinner 15 minutes be­
fore petitioners directed the police to clear the street, 
Pet. App. 177a, does not support an inference that pe­
titioners lacked a valid security rationale for that di­
rective. The substantially more likely explanation for 
the timing of petitioners’ order is that petitioners— 
who had limited time to secure the area—did not ini­
tially have the opportunity to fully assess the security 
risk of having respondents’ group on the street adja­
cent to the alley. Respondents acknowledge (Br. 30) 
that petitioners had only a limited amount of time 
(roughly 20 minutes) within which to make security 
arrangements after the President changed his plans 
and decided to dine outdoors at the Inn. Petitioners 
could not realistically develop a perfect security plan



15

in that short a period. Rather, they would naturally 
seek to improve the plan as the situation developed or 
as further optimizations became apparent. Indeed, 
respondents do not even allege that petitioners knew 
the President would dine on the patio (as opposed to 
inside the Inn, where he would have been more shield­
ed from respondents’ group) until the President actu­
ally arrived and sat down. Pet. App. 175a.5 In any 
event, regardless of the timing, moving a group that 
was within weapons range of the President to a dis­
tance that was still closer to the President than anoth­
er group of demonstrators cannot plausibly suggest a 
purely discriminatory motive.

Treatment o f the diners and guests at the Inn. 
Even the Ninth Circuit recognized, in rejecting re­
spondents’ earlier complaint, that the “allegation that 
the diners and guests inside the Inn were allowed to 
remain in close proximity to the President without se­
curity screening does not push their viewpoint dis­
crimination claim into the realm of the plausible.” 572 
F.3d at 971. The court declined to reconsider the is­
sue in the second appeal and noted law-of-the-case 
concerns about whether the mandate from the first 
appeal would permit such reconsideration. See Pet. 
Br. 47 & n.6; Pet. App. 43a n.5. Respondents do not 
address those law-of-the-case concerns. But even as­
suming the issue is fairly presented, for the reasons 
explained in the opening brief (at 47-48), the diners

5 Respondents’ attempt to paint the picture that petitioners 
moved them only when their chants became audible is additionally 
undermined by their failure specifically to allege that they only 
started chanting 15 minutes or so after the President arrived. It is 
implausible that respondents, who had gathered specifically to pro­
test the President, stood quietly by for that length of time.



16

and guests at the Inn were not similarly situated to 
respondents, and any differential treatment of them 
does not create an inference of discriminatory motive.

Respondents’ contention (Br. 28) that the diners 
and guests at the Inn “posed a greater risk of assault­
ing the President” erroneously assumes that anyone 
closer to the President is a greater threat than some­
one farther away. That is not so. Because the Presi­
dent’s visit to the Inn was unknown even to the Secret 
Service until just before it occurred, the diners and 
guests at the Inn could not have had any expectation 
that they would see the President that evening or any 
opportunity to premeditate a plan to cause him harm. 
The diners and guests thus presented a risk to the ex­
tent that one of them might have been carrying a 
weapon for unrelated reasons and decided on the spur 
of the moment to try to use it on the President, or de­
cided spontaneously to use a utensil or other nearby 
object as a weapon.6 See id. at 29. The Secret Service 
could mitigate that risk by keeping close watch on the 
relatively small number of people in the Inn (see Pet. 
App. 177a) and controlling ingress and egress so as to 
keep the situation stable.

Under the circumstances, respondents’ group pre­
sented a different, and potentially greater, risk. The 
group was larger in number (see Pet. App. 169a) and 
was crowded together in a manner that could have

6 Such an ad hoc attack would have been so unlikely actually to 
harm the President that it is doubtful anyone would have tried it. 
See Rubin v. United States, 525 U.S. 990, 993 (1998) (Breyer, J., 
dissenting) (observing that “the Secret Service seeks to surround a 
President with an all-encompassing zone of protection, such that 
agents, once alerted, can form a human shield within seconds” ) 
(internal quotation marks and citation omitted).



17

made it difficult to spot individual threatening move­
ments, such as someone drawing a gun (see Pet. Br. 4 
(Diagram A)). The original members of the group had 
self-identified as critical of the President, had ven­
tured out that evening (and had chosen their route) 
precisely because the President would be nearby, and 
had ample opportunity to arm themselves with their 
proximity to the President in mind. And the Secret 
Service could not necessarily prevent additional peo­
ple, who had heard about the President’s location and 
arrived with the specific purpose of attempting to 
harm him, from joining the crowd.

Respondents’ reliance on the allegations about the 
diners and guests at the Inn is also flawed on a more 
fundamental level. At bottom, the inference respond­
ents would draw from those allegations is that peti­
tioners simply did not care about risks to the Presi­
dent’s physical safety, and thus must have moved re­
spondents for reasons unrelated to any such risks. 
See Resp. Br. 29. That inference requires a conclu­
sion that petitioners deliberately failed to carry out 
the Secret Service’s most critical mission, see 18 
U.S.C. 3056(a)(1), or, at the very least, were massively 
incompetent. Cf. United States v. Armstrong, 517 
U.S. 456, 464 (1996) (recognizing a “presumption of 
regularity” for certain government actions) (citation 
omitted). Particularly as compared to the “obvious 
alternative explanation,” Iqbal, 556 U.S. at 682 (cita­
tion omitted), that petitioners legitimately viewed re­
spondents’ group as more of a threat, the inference is 
not plausible.

The Secret Service’s alleged unwritten policy of 
viewpoint discrimination. The complaint expressly 
recognizes that the Secret Service has “written guide­



18

lines, directives, instructions and rules which purport 
to prohibit Secret Service agents from discriminating 
between anti-government and pro-government de­
monstrators, between demonstrators and others en­
gaged in expressive assembly, and between demon­
strators and members of the public not engaged in ex­
pressive assembly.” Pet. App. 184a. Respondents, 
however, would treat those written policies as fraudu­
lent; infer that the Secret Service’s actual policy was 
to actively suppress disfavored speech; and would 
then further infer that petitioners were engaging in 
viewpoint discrimination in the particular circum­
stances of this case. Nothing in the complaint makes 
that chain of reasoning plausible.

For the reasons explained in the opening brief (at 
48-49), the Presidential Advance Manual, which was 
not prepared by or for the Secret Service, does not 
suggest that petitioners here engaged in viewpoint 
discrimination. Respondents rely (Br. 5) on a passage 
advising members of the President’s advance team, at 
certain ticketed presidential events, to “work with the 
Secret Service and have them ask the local police de­
partment to designate a protest area where demon­
strators can be placed; preferably not in view of the 
event site or motorcade route.” Pet. App. 219a; see id. 
at 215a (section on “Crowd Raising and Ticket Distri­
bution”). That statement is most naturally understood 
to reflect that the Secret Service is the primary liaison 
to local police during presidential visits. Particularly 
when viewed in light of the surrounding context, it 
cannot plausibly be taken to suggest that the Secret 
Service disregards its written policies and engages in 
systematic viewpoint discrimination. Among other 
things, the manual elsewhere expressly instructs that



19

demonstrators who “appear likely to cause only a po­
litical disruption” are “the Advance person’s responsi­
bility” and that the Secret Service should be notified 
only if “the demonstrators appear to be a security 
threat.” Id. at 220a. That express recognition that 
the Secret Service deals only with security threats re­
inforces both the Secret Service’s own written policies 
and the obvious security-based explanation for peti­
tioners’ actions here.

The opening brief also explains (at 49) why the 
complaint’s largely conclusory allegations of viewpoint 
discrimination by other Secret Service agents in other 
situations at other times—even if true, and even if 
found to be instances of unlawful discrimination—do 
not support an inference of viewpoint discrimination 
by petitioners in this particular case. Respondents’ 
brief acknowledges (Br. 25-26) differences between 
those alleged incidents and this one, but contends that 
the other incidents would provide evidence of a “Se­
cret Service policy” of viewpoint discrimination, which 
would in turn suggest that petitioners were “acting in 
accordance” with that policy in the circumstances of 
this case. That argument is foreclosed by Iqbal, which 
rejected an analogous theory of inferential animus.

The Court in Iqbal recognized that, in a Bivens suit 
alleging unconstitutional discrimination, individual 
government officials “cannot be held liable” in their 
personal capacities “unless they themselves acted on 
account of a constitutionally protected characteristic.” 
556 U.S. at 683 (emphasis added); see id. at 677. The 
Court accordingly found claims of discriminatory mo­
tive by high-ranking government officials implausible 
notwithstanding that the plaintiff “allege[d] that vari­
ous other defendants,” who were the officials’ subordi­



20

nates, might have acted “for impermissible reasons.” 
Id. at 682-683. The Court acknowledged that certain 
allegations in the complaint, “if true, and if condoned 
[by the officials], could be the basis for some inference 
of wrongful intent on [the officials’] part.” Id. at 683. 
But the complaint nevertheless “d[id] not suffice to 
state a claim,” because it failed to “plausibly suggest 
[the officials’ own] discriminatory state of mind.” 
Ibid.

Respondents’ theory in this case would go even fur­
ther than the theory rejected in Iqbal. It would re­
suscitate the theory rejected in Iqbal by relying on the 
actions of certain field-level operatives (a handful of 
Secret Service agents) to create an inference of dis­
crimination at the highest levels of the agency (an un­
written agency-wide policy favoring viewpoint dis­
crimination). It would then take the additional step of 
inferring that different field-level operatives (petition­
ers) acted in accordance with that policy and them­
selves harbored unconstitutional motives. The Court 
should not effectively authorize vicarious Bivens liabil­
ity by allowing plaintiffs to impugn the motives of eve­
ry single officer in an agency based on the alleged 
wrongful intent of a few. And it especially should not 
do so in the critical and sensitive context of Secret 
Service agents protecting the physical safety of the 
President.



21

For the foregoing reasons and those stated in the 
opening brief, the judgment of the court of appeals 
should be reversed.

Respectfully submitted.
Donald B. Verrilli, Jr. 

Solicitor General

Ma r c h  2014