                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 LESLIE WEISE et al.,

    Plaintiffs,

      v.                                                      Civil Action No. 07–1157 (CKK)
 GREGORY J. JENKINS et al.,

    Defendants.



                                   MEMORANDUM OPINION
                                       (July 13, 2011)

       This action arises out of an incident on March 21, 2005, when Plaintiffs Leslie Weise and

Alex Young were excluded from a public event in Denver, Colorado, where then-President

George W. Bush was scheduled to give a speech on the topic of Social Security. According to

Plaintiffs, officials acting under the authority of the White House Office of Presidential Advance

ejected Plaintiffs from the event solely because they had arrived in a car that bore a bumper

sticker carrying the slogan “No More Blood For Oil.” Plaintiffs filed this action under Bivens v.

Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), seeking to

remedy this alleged violation of their First Amendment rights. Defendants Gregory Jenkins and

Todd Beyer are not the officials in Denver who actually ejected Plaintiffs from the event; rather,

they are two former directors of the White House Office of Presidential Advance who are alleged

to have created the policies that allegedly led to Plaintiffs’ ejection. Plaintiffs therefore seek to

hold Defendants liable for creating an unconstitutional policy.




                                                   1
       Presently pending before the Court are Defendant Jenkins’s [34] Motion to Dismiss or in

the Alternative for Summary Judgment and Defendant Beyer’s [33] Motion for Summary

Judgment, which the Court shall treat as a motion to dismiss.1 Defendants contend that they are

entitled to qualified immunity because they were not personally involved in the decision to

remove Plaintiffs from the event and because the ejection did not violate Plaintiffs’ clearly

established constitutional rights. Plaintiffs argue that the policy was clearly unconstitutional and

that they are entitled to discovery regarding Defendants’ involvement in creating it. The Court

declines to address Defendants’ claims of qualified immunity, however, because the Court finds

that the allegations in the Amended Complaint, considered together with the language of the

challenged policy, fail to state a claim for relief that is plausible on its face. Accordingly, the

Court shall grant Defendants’ motions and dismiss Plaintiffs’ Amended Complaint. The Court

does not address the constitutionality of Defendants’ actions or the actions of those who removed

Plaintiffs from the event.

                                        I. BACKGROUND

       A.      Factual Background

       The following facts are drawn from the allegations in the Amended Complaint, which the

Court accepts as true for purposes of evaluating a motion to dismiss, see Atherton v. D.C. Office

of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009).




       1
          Although Defendant Beyer styled his motion as one for summary judgment, he concedes
that is appropriate for the Court to treat it as a motion to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6).

                                                   2
               1.      Weise and Young’s Attendance at and Removal from a Presidential Event

       On March 21, 2005, then-President George W. Bush held an event at the Wings Over the

Rockies Air and Space Museum in Denver, Colorado, where he delivered a speech on the topic

of Social Security. Am. Compl. ¶ 8. This speech was an official visit by the President, paid for

by taxpayers and open to the public. Id. ¶ 9. On March 18, 2005, Plaintiffs Leslie Weise

(“Weise”) and Alex Young (“Young”) separately obtained tickets to the event from the office of

United States Representative Bob Beauprez. Id. ¶ 10.

       Plaintiffs arrived at the event on March 21 in a vehicle owned and driven by Weise. Am.

Compl. ¶ 11. Weise’s vehicle displayed a bumper sticker with the slogan “No More Blood for

Oil,” which it is claimed could have been interpreted as an expression of opposition to the

President’s policies. Id. Plaintiffs allege that their purpose in attending the event was to listen to

the President’s views on Social Security and that they had no intention of disrupting the event.

Id. ¶ 12. In addition, Young alleges that if the President had permitted questions from the floor,

he would have sought to ask a question. Id. Neither Defendant has made any assertion that

Plaintiffs intended to disrupt the event in any fashion, and Plaintiffs claim (without dispute from

Defendants) that they did not engage in any action that could be considered disruptive. Id. ¶ 29.

       Weise, accompanied by a friend, approached the metal detectors near the entrance to the

event and was asked to show identification. Am. Compl. ¶ 13. Weise showed her identification,

but the man guarding the entrance prohibited Weise and her friend from entering the event and

directed them to stand aside next to a member of the White House Event Staff. Id. Young was

screened by a different person and was permitted to pass through security; he then went inside

and found a seat. Id. ¶ 14. Michael Casper (“Casper”), a member of the White House Event


                                                  3
Staff, told Weise that she had been “ID’d” and that she and her friend would be arrested if they

had any ill intentions or if they tried any “funny stuff.” Id. ¶ 16. Plaintiffs allege that Casper

issued these threats and warnings solely because of the bumper sticker on Weise’s car and his

perception that Weise opposed the President’s policies. Id. ¶ 17.

       After Casper issued these warnings, he let Weise and her friend enter the event, and they

proceeded to the area where the audience was seated. Id. ¶ 18. However, Casper then consulted

with two full-time employees of the White House Office of Presidential Advance (one of whom

was the Deputy Director of that office), and these employees told Casper to require Weise and

Young to leave the event. Id. A few minutes later, Casper found both Young and Weise inside

the event and told them to leave. Id. ¶ 19. Casper placed his hand on Young’s back and shoved

him forward toward the exit, and Weise followed Casper as he pushed Young toward the door.

Id. Young repeatedly asked Casper who he was, where he was taking them, and what was going

on. Id. Casper told them that it was a private event and that they needed to leave. Id.

       Once outside the event, Weise and Young were left with a group of men. Am. Compl.

¶ 20. One of the men identified himself as a member of the Secret Service, and he told Weise

and Young that if staff asked them to leave, they had to leave. Id. After the event, the Secret

Service confirmed to Weise and Young that they were ejected from the event because of the

bumper sticker on Weise’s vehicle. Id. ¶ 21. Plaintiffs claim that the audience at the event

included many individuals who were wearing political paraphernalia expressing support for the

President and his policies, and none of them were asked to leave the event. Id. ¶ 22. Plaintiffs

contend that their removal from the event deprived them of their First Amendment rights and

caused them to suffer emotional distress. Id. ¶ 23.


                                                  4
               2.      The White House Office of Presidential Advance Policies Regarding
                       Attendance at Presidential Events

       Planning for each official Presidential visit begins in the District of Columbia with the

White House Office of Presidential Advance (“Advance Office”). Am. Compl. ¶ 24. Defendant

Jenkins was the Director of the Advance Office from January 15, 2003 to November 30, 2004.

Id. ¶ 7. Defendant Beyer later served in the same position and was Director of the Advance

Office at the time of the March 2005 incident.2 Id. ¶ 6. Plaintiffs claim that the “policies

concerning attendance at the event were set by Defendants acting as federal officials” and that

“the ejection of the Plaintiffs was done at the direction of and pursuant to the policies adopted

and implemented by the Defendants.” Id. ¶ 25. Plaintiffs allege that these policies are embodied

in the Presidential Advance Manual created by the Advance Office. Id. ¶¶ 26-27. Plaintiffs

allege that Defendants Jenkins and Beyer were responsible for promulgating and implementing

these policies while serving in their capacities as Directors of the Advance Office. Id. ¶ 27.

       The Presidential Advance Manual sets forth guidelines and policies to be followed by

Advance Office staff and others who are responsible for managing Presidential events. See Pl.’s

Opp’n, Ex. 2 (Excerpts from Presidential Advance Manual, October 2002) (hereinafter,

“Advance Manual”).3 The policies relevant to this case are described in Section V of the


       2
         Plaintiffs do not plead the specific dates of Defendant Beyer’s tenure at the Advance
Office, although Beyer states in an affidavit that he served as Director from January 2005 until
October 2007. See Beyer Aff. ¶¶ 3-4. The Court does not rely on this information in deciding
the pending motions.
       3
         As explained in the declaration of Arthur B. Spitzer, Plaintiffs obtained a redacted copy
of the Advance Manual from the American Civil Liberties Union, which had obtained it in the
same redacted from via discovery in a prior civil action. Spitzer Decl. ¶ 8. The document had
been produced in response to a discovery request for “all documents concerning policies
governing audience member conduct or expression for any other official appearance by the

                                                 5
Advance Manual, titled “Crowd Raising and Ticket Distribution.” Id. at 32.4 The Manual states

that “[p]roper ticket distribution is vital to creating a well-balanced crowd and deterring potential

protestors from attending events.” Id. at 32. The Manual then sets forth policies regarding how

ticket distribution will be coordinated by the Advance Office. Id. at 32-33.

        The Manual also has a subsection specifically addressing the issue of demonstrators.

Under a heading captioned, “Preventing Demonstrators,” the Advance Manual states in pertinent

part:

        As mentioned, all Presidential events must be ticketed or accessed by a name list.
        This is the best method for preventing demonstrators. People who are obviously
        going to try to disrupt the event can be denied entrance at least to the VIP area
        between the stage and the main camera platform. That does not mean that supporters
        without tickets cannot be given tickets at the door and gain entrance to the event. It
        is also not the responsibility of the Secret Service to check the tickets of the people
        entering. They are concerned whether the person is a threat physically to The
        President and not a heckler. It is important to have your volunteers at a checkpoint
        before the Magnetometers in order to stop a demonstrator from getting into the event.
        Look for signs they may be carrying, and if need be, have volunteers check for folded
        cloth signs that demonstrators may be bringing to the event.

Advance Manual at 34.

        The Manual describes how to prepare for demonstrators by working with the Secret

Service and local police to “designate a protest area where demonstrators can be placed,


President.” Id. The Court may consider the Advance Manual without treating Defendants’
motions as ones for summary judgment because it is referenced in the Amended Complaint and it
is integral to Plaintiffs’ claims. See EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621,
624-25 (D.C. Cir. 1997) (“In determining whether a complaint fails to state a claim, we may
consider only the facts alleged in the complaint, any documents attached to or incorporated in the
complaint and matters of which we may take judicial notice.”); Kaempe v. Myers, 367 F.3d 958,
965 (D.C. Cir. 2004) (noting that it is appropriate to consider documents whose authenticity is
not disputed where they are referenced in the complaint and integral to the plaintiff’s claims).
        4
         Other sections of the Advance Manual address topics such as the President’s schedule,
dealing with the press, and hotel arrangements. See Advance Manual at 2.

                                                  6
preferably not in view of the event site or motorcade route.” Advance Manual at 34. The

Manual also describes the use of “rally squads” as “a common way to prepare for demonstrators

by countering their message.” Id. The Manual describes this tactic as “utilizing small groups of

volunteers to spread favorable messages using large hand held signs, placards, or perhaps a long

sheet banner, and placing them in strategic areas around the site.” Id. The Manual explains:

       These squads should be instructed always to look for demonstrators. The rally
       squad’s task is to use their signs and banners as shields between the demonstrators
       and the main press platform. If the demonstrators are yelling, rally squads can begin
       and lead supportive chants to drown out the protestors (USA!, USA!, USA!). As a
       last resort, security should remove the demonstrators from the event site. The rally
       squads can include, but are not limited to, college/young republican organizations,
       local athletic teams, and fraternities/sororities.

Id. at 34. The Manual advises that “[i]t is important for the Advance Team and all volunteers to

be on the lookout for potential demonstrators.” Advance Manual at 34. It states that volunteers

should be instructed to contact the Advance Office person on site when they see demonstrators.

Id.

       Finally, and importantly, the Advance Manual provides guidelines for “handling”

demonstrators:

       Once a group of demonstrators has been identified, the Advance person must decide
       what action to take. If it is determined that the media will not see or hear them and
       that they pose no potential disruption to the event, they can be ignored. On the other
       hand, if the group is carrying signs, trying to shout down the President, or has
       potential to cause some greater disruption to the event, action needs to be taken
       immediately to minimize the demonstrator’s effect.

       Before reacting to demonstrators, the Advance person should inform the rest of the
       Advance Team, the Tour Director, and the Press Advance Director of the situation.
       Be prepared to give the number of demonstrators, location(s), a description, and their
       issue/organization.




                                                 7
       If the demonstrators appear to be a security threat notify the Secret Service
       immediately. If demonstrators appear likely to cause only a political disruption, it is
       the Advance person’s responsibility to take appropriate action. Rally squads should
       be dispatched to surround and drown out demonstrators immediately.

       Remember - avoid physical contact with demonstrators! Most often, the
       demonstrators want a physical confrontation. Do not fall into their trap! Also, do not
       do anything or say anything that might result in physical harm to the demonstrators.
       Before taking action, the Advance person must decide if the solution would cause
       more negative publicity than if the demonstrators were simply left alone.

Advance Manual at 35.

       Plaintiffs allege that they were treated as “demonstrators” or “protestors” pursuant to the

policies in the Advance Manual. Plaintiffs claim that the Manual means “demonstrators” or

“protestors” to include “anyone who expresses or is likely to express a viewpoint different from

that of the President or critical of the President or of his policies.” Am. Compl. ¶ 28. Plaintiffs

allege that one of the Advance Office staff involved in excluding them from the event confirmed

to the press that there was a national policy to exclude people whom the White House believed

might disrupt an event. Id. ¶ 30. Plaintiffs contend that the Advance Office “equates anyone

who expresses disagreement with the President’s views as someone who might disrupt an event.”

Id.

       Plaintiffs allege that other individuals have been similarly excluded or ejected from

Presidential events because they expressed, or were thought likely to express, a viewpoint in

disagreement with President Bush’s views. Am. Compl. ¶ 31. For example, Plaintiffs allege that

a ticket holder in line to hear the President speak in LaCrosse, Wisconsin wore a T-shirt critical

of the President and was ejected by security officials. Id. Plaintiffs allege that several dozen

individuals in Fargo, North Dakota, many of whom belonged to a liberal organization and had



                                                 8
publicly opposed the President’s policies, were placed on a “do not admit” list and forbidden to

attend a Presidential event. Id. Plaintiffs allege that a student in Tucson, Arizona was barred

from a Presidential forum on Social Security because he was wearing a “Young Democrats” T-

shirt. Id. And Plaintiffs allege that in Charleston, West Virginia, Jeffrey and Nicole Rank were

arrested for peacefully wearing T-shirts that contained a message disagreeing with the President’s

policies at a public rally on the grounds of the State Capitol on July 4, 2004. Id. ¶¶ 32-33.

       B.      Procedural Background

       Plaintiffs initially filed a lawsuit against Michael Casper and another individual involved

in excluding them from the Presidential event in the United States District Court for the District

of Colorado. See Weise v. Casper, No. 05-cv-2355 (D. Colo. filed Nov. 11, 2005). Plaintiffs

alleged these officials violated their First and Fourth Amendment rights by ejecting them from

the event on the basis of their viewpoint. Plaintiffs subsequently filed a similar suit against three

additional defendants, all former employees of the Advance Office, including Defendant Jenkins.

See Weise v. Jenkins, No. 07-cv-515 (D. Colo. filed Mar. 15, 2007). The cases were consolidated

in the District of Colorado. Soon after filing suit against Jenkins in Colorado, Plaintiffs filed the

present action against Jenkins in this Court, raising virtually identical allegations.5 The Court

stayed this action pending resolution of the consolidated cases pending in Colorado. Plaintiffs

then filed their Amended Complaint in this action, adding claims against Defendant Beyer.




       5
          When Plaintiffs filed their initial Complaint on June 15, 2007, there were claims by two
additional Plaintiffs, Jeffery and Nicole Rank. However, those plaintiffs voluntary dismissed
their claims on August 28, 2007 in consideration of an anticipated payment of $80,000 from the
United States. See [9] Notice of Dismissal with Prejudice as to Plaintiffs Jeffery and Nicole
Rank.

                                                  9
       On November 6, 2008, the District Court in Colorado held that it lacked personal

jurisdiction over Defendant Jenkins. See Weise v. Casper, Civil Action No. 05-2355-WYD-

CBS, 2008 WL 4838682, *2-4 (D. Colo. Nov. 6, 2008). That court also dismissed Plaintiffs’

claims against two other defendants on the ground that there was no constitutional violation. See

id. at *8. This Court then lifted the stay on the present action. Defendant Jenkins subsequently

filed his Motion to Dismiss or in the Alternative for Summary Judgment, and Defendant Beyer

filed his Motion for Summary Judgment. Both motions raised, among other arguments, the

defense of qualified immunity. After these motions were fully briefed, the Court ordered the

parties to submit supplemental briefing to address the question of whether the ruling by the

District of Colorado in the consolidated cases had any preclusive effect on the issues to be

decided by this Court. Shortly thereafter, the U.S. Court of Appeals for the Tenth Circuit

affirmed the district court, holding that the defendants were entitled to qualified immunity

because Plaintiffs’ right not to be ejected from the Presidential event was not clearly established

at the time of the alleged violation. See Weise v. Casper, 593 F.3d 1163 (10th Cir. 2010), cert.

denied, 131 S. Ct. 7. The District of Colorado court subsequently dismissed the claims against

all remaining defendants. See Weise v. Casper, 2010 WL 3529546 (D. Colo. Sept. 2, 2010),

aff’d, 2011 WL 2193359 (10th Cir. Jun. 7, 2011).

                                    II. LEGAL STANDARD

       The Federal Rules of Civil Procedure require that a complaint contain a “short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

The complaint need not contain “detailed factual allegations,” but it “demands more than an

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct.


                                                 10
1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to

withstand a motion to dismiss, a complaint must offer more than “labels and conclusions” or “a

formulaic recitation of the elements of a cause of action.” Id. “To survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. “Plausibility” does not mean

“probability,” but it does require more than mere possibility that a defendant has acted

unlawfully. Id. “Where a complaint pleads facts that are merely consistent with a defendant's

liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Id.

(quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

        The Supreme Court has outlined a two-prong approach for analyzing the sufficiency of a

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.

        In evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6), the

court must construe the complaint in the light most favorable to the plaintiff and accept as true all

reasonable factual inferences drawn from well-pleaded factual allegations. In re United Mine

Workers of Am. Employee Benefit Plans Litig., 854 F. Supp. 914, 915 (D.D.C. 1994); see also



                                                   11
Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (“The complaint must be ‘liberally

construed in favor of the plaintiff,’ who must be granted the benefit of all inferences that can be

derived from the facts alleged.”). However, a plaintiff must provide more than just “a sheer

possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1950. Where the

well-pleaded facts set forth in the complaint do not permit a court, drawing on its judicial

experience and common sense, to infer more than the “mere possibility of misconduct,” the

complaint has not shown that the pleader is entitled to relief. Id. at 1950.

       When considering a motion to dismiss under Rule 12(b)(6), a court may only consider the

facts alleged in the complaint, any documents attached as exhibits thereto (or incorporated

therein), and matters subject to judicial notice in weighing the merits of the motion. EEOC v. St.

Francis Xavier Parochial Sch., 117 F.3d 621 (D.C. Cir. 1997). If matters outside the pleading

are considered, a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6) must be treated as a motion

for summary judgment. Fed. R. Civ. Proc. 12(d).

                                        III. DISCUSSION

       Plaintiffs bring this Bivens action against Defendants Jenkins and Beyer for damages and

declaratory relief, claiming that Defendants violated Plaintiffs’ First Amendment rights by

establishing a viewpoint-discriminatory policy that caused them to be ejected from a Presidential

event based on their apparent opposition to President Bush’s policies. Defendants move to

dismiss Plaintiffs’ claims, asserting that they are entitled to qualified immunity because they

were not personally involved in the alleged deprivation and because their conduct did not violate




                                                 12
Plaintiffs’ clearly established constitutional rights.6 Defendants also contend that Plaintiffs have

failed to plead facts that plausibly show they can be held liable as policymakers. The Court shall

address these issues below.

       A.      Policymaking Liability Under Bivens

       In Bivens, the Supreme Court “recognized for the first time an implied right of action for

damages against federal officers alleged to have violated a citizen’s constitutional rights.” Corr.

Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). Bivens provides federal courts with “discretion

in some circumstances to create a remedy against federal officials for constitutional violations,

but [courts] must decline to exercise that discretion where ‘special factors counsel[] hesitation’ in

doing so.” Wilson v. Libby, 535 F.3d 697, 704 (D.C. Cir. 2008) (quoting Bivens, 403 U.S. at

396). Here, Plaintiffs allege that Defendants’ policies targeted them for removal from a

Presidential event because they appeared to express a viewpoint critical of the President. “[T]he

law is settled that as a general matter the First Amendment prohibits government officials from

subjecting an individual to retaliatory actions . . . for speaking out . . . . When the vengeful officer

is federal, he is subject to an action for damages on the authority of Bivens.” Hartman v. Moore,




       6
         Defendants alternatively move for summary judgment, relying on declarations and other
factual evidence to support their arguments. Because Plaintiffs have requested the opportunity to
engage in discovery to rebut Defendants’ evidence, the Court declines to rule on Defendants’
motions for summary judgment, and it need not reach them.

                                                  13
547 U.S. 250, 256 (2006) (internal citations omitted).7 “[A] Bivens action is the federal analog to

suits brought against state officials under . . . 42 U.S.C. § 1983.” Id. at 254 n.2.

       “Government officials may not be held liable for the unconstitutional conduct of their

subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 129 S. Ct. at 1948.

“Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that

each Government-official defendant, through the official’s own individual actions, has violated

the Constitution.” Id. In this case, Plaintiffs seek to hold Defendants Jenkins and Beyer liable

for creating unconstitutional policies that were applied by others to exclude them from the

President’s speech in Denver. The D.C. Circuit explicitly addressed this kind of “policymaking

liability” in Haynesworth v. Miller, 820 F.2d 1245, 1258 (D.C. Cir. 1987), abrogated on other

grounds by Hartman v. Moore, 547 U.S. 250 (2006).8 As the Haynesworth court explained:

       Governmental officials may also be held personally liable in damages for
       constitutional infringements resulting from their establishment of unconstitutional
       policies. . . . [P]olicymaking liability rests upon the official’s misfeasance rather than
       his nonfeasance. For an official to be held accountable on this basis, he must actually
       prescribe policy–formally or de facto–that encourages improper means or ends. To
       succeed on a policymaking theory, a plaintiff must demonstrate that the official
       against whom liability is asserted has the power—vested either formally or as a
       practical matter—to formulate policy, and has exercised that policymaking authority
       to generate improper practices.


       7
         Although the Supreme Court has refused to extend Bivens to every context in which a
federal official violates the First Amendment, see Bush v. Lucas, 462 U.S. 367 (1983) (rejecting
Bivens remedies for violations by federal employers), courts within this circuit have generally
recognized a Bivens remedy for private citizens who claim that their First Amendment rights
have been violated by federal officers. See, e.g., Oberwetter v. Hilliard, 639 F.3d 545, 554 (D.C.
Cir. 2011); Lederman v. United States, 291 F.3d 36, 40-41 (D.C. Cir. 2002).
       8
         The Supreme Court ruled in Hartman that the plaintiff bears the burden of pleading and
proving lack of probable cause in a Bivens action for retaliatory prosecution in violation of the
First Amendment. The D.C. Circuit had held in Haynesworth that there was no such
requirement. See 820 F.2d at 1255-57.

                                                  14
Haynesworth, 820 F.2d at 1264.

       Therefore, to establish a claim for policymaking liability under Bivens, a plaintiff must

show that the official (1) established a policy (2) that was unconstitutional and (3) caused the

plaintiff to be injured. Defendants cannot be held liable simply for failing to change a

preexisting policy, nor can they be held liable for the actions of others who misapply the policy

that was actually adopted. Because they are only liable for their own misconduct, Plaintiffs must

plead and ultimately prove that Defendants were personally involved as policymakers. Iqbal,

129 S. Ct. at 1949. Accordingly, the Court shall consider whether Plaintiffs have adequately

stated a plausible claim for policymaking liability as the D.C. Circuit set out in Haynesworth.9

       B.      Plaintiffs’ Allegations Regarding Their Ejection and the Connection to the
               Policies in the Advance Manual

       Plaintiffs’ claims are based on “[t]he policy [that] is embodied in the Presidential

Advance Manual created by and guiding the actions of the White House Office of Presidential

Advance.” Am. Compl. ¶ 27. Plaintiffs contend that Defendants should be held liable as

policymakers because they were allegedly responsible for adopting the policies in the Advance

Manual. The Court assumes arguendo that a policy aimed at excluding persons who express

opposing viewpoints from public events would be unconstitutional. See Perry v. Sindermann,

408 U.S. 593, 597 (1972) (“[T]his Court has made clear that even though a person has no ‘right’

to a valuable governmental benefit and even though the government may deny him the benefit for

any number of reasons, . . . [i]t may not deny a benefit to a person on a basis that infringes his



       9
        Haynesworth also sets forth a standard for determining when supervisory officials may
be personally liable in damages for the unconstitutional acts of subordinates, see 820 F.2d at
1262, but Plaintiffs are not pursuing a claim based on supervisory liability, see Pls.’ Opp’n at 32.

                                                 15
constitutionally protected interests—especially, his interest in freedom of speech.”); Weise v.

Casper, 131 S. Ct. 7 (2010) (Ginsburg, J., dissenting from denial of certiorari) (“I cannot see how

reasonable public officials, or any staff or volunteers under their direction, could have viewed the

bumper sticker as a permissible reason for depriving Weise and Young of access to the event.”).

However, the Advance Manual does not explicitly contain such a policy, and even if the language

in the Advance Manual could be read to include such a policy, Plaintiffs have failed to plead

facts that plausibly show that they were excluded pursuant to that policy.

       Plaintiffs claim, based on how they and others around the country were treated, that the

Advance Office considers anyone who expresses or is likely to express a viewpoint different

from the President to be a “demonstrator” or a “protestor” within the meaning of the Advance

Manual. See Am. Compl. ¶ 28. That is certainly a plausible contention; the Manual explicitly

uses the word “supporters” in contrast and prescribes the use of rally squads with “favorable

messages” and “supportive chants” to “counter” demonstrators’ messages. The Manual does not

define the terms “demonstrator” or “protestor,” but it describes them as “people who are

obviously going to try to disrupt the event” or persons “carrying signs, trying to shout down the

President, or [having] the potential to cause some greater disruption to the event.” Advance

Manual at 34, 35. That is consistent with the ordinary definitions of these terms provided in the

dictionary. See, e.g., American Heritage College Dictionary 370, 1100 (3d ed. 1997).

       Even if Plaintiffs were identified as demonstrators or protestors, however, there is nothing

in the Advance Manual that would have dictated their ejection from the event. Plaintiffs claim

that “they were excluded from the event even though neither had engaged in any action that could

be considered disruptive, and there was no reason to believe that either would do so.” Am.


                                                16
Compl. ¶ 29. If that is true—and the Court must assume it is when ruling on a motion to

dismiss—then officials acting pursuant to the policies written in the Advance Manual should

have concluded that Plaintiffs posed no potential disruption and simply ignored them. The

Manual explicitly states that “[i]f it is determined that the media will not see or hear [a group of

demonstrators] and that they pose no potential disruption to the event, they can be ignored.”

Advance Manual at 35. Since Plaintiffs were not visibly or audibly demonstrating at the event,

there would have been nothing for the media to see or hear and, according to Plaintiffs’

allegations, there was no other basis for the Advance Office staff to conclude that Plaintiffs

would cause a disruption. Therefore, Plaintiffs’ allegations that they were ejected despite a

complete lack of demonstration or protest activity is inconsistent with the policy expressed in the

Advance Manual.

       The Manual also contains no language suggesting that ejection of a ticketed guest is

appropriate. Rather, the Manual focuses on preventing likely demonstrators from obtaining

tickets in the first place.10 The Manual also states that “[p]eople who are obviously going to try

to disrupt the event can be denied entrance at least to the VIP area between the stage and the

main camera platform,” which suggests that demonstrators who have a ticket may be allowed

into other seating areas. Although the Manual does state that “[i]t is important to have your

volunteers at a checkpoint before the Magnetometers in order to stop a demonstrator from getting

into the event,” the sentences preceding this statement suggest that it is focused on excluding

persons who do not have a ticket for the event. Even when a potential demonstrator has been



       10
          Since Plaintiffs obtained tickets to the event through their Congressman, they lack
standing to challenge the ticket distribution policies in the Advance Manual.

                                                 17
identified, the Manual instructs personnel to minimize the disruption rather than eliminate it

entirely. For example, where the Manual instructs Advance personnel to “take appropriate

action” to squelch “a political disruption,” it recommends measures such as countering

demonstrators’ speech with rally squads or confining demonstrators to designated protest zones.

The Manual describes removal of demonstrators by security as “a last resort” option, suggesting

that it is ordinarily inappropriate to eject a demonstrator from an event. Therefore, Plaintiffs’

ejection does not fall squarely under any of the policies as stated in the Manual.

       Plaintiffs attempt to bridge the gap between the words in the Advance Manual and what

happened to them in Denver by alleging that there was a national policy to exclude people whom

the White House believed might disrupt an event and that “[t]he White House Office of

Presidential Advance equates anyone who expresses disagreement with the President’s views as

someone who might disrupt an event.” Am. Compl. ¶ 30. However, it is impossible to square

that allegation with the instruction in the Advance Manual that demonstrators who pose no

potential disruption to the event can be ignored. If Plaintiffs can be deemed potentially

disruptive demonstrators based solely on their apparent disagreement with the President’s

policies, then there will never be any “demonstrators” who can be ignored, since the

demonstrators must, by virtue of their demonstration activity, be expressing some disagreement

with the President or his policies and thus pose a threat of disruption. Therefore, Plaintiffs’

allegation would render the written language in the Advance Manual meaningless, suggesting

that the persons who ejected them from the event were not actually following the policy

prescribed by the Manual.




                                                 18
       Because the Advance Manual did not dictate the ejection of Plaintiffs from the

President’s speech based on Weise’s bumper sticker, Plaintiffs have failed to plead facts that

plausibly demonstrate a causal connection between their ejection and any nationwide policy

created by Defendants. Based on the facts alleged in the Amended Complaint—disregarding the

conclusory assertions that the Court is not required to credit—it appears more likely that

Plaintiffs were ejected from hearing the President’s speech by Advance Office staffers who

misinterpreted, misapplied, or were ignorant of national policies regarding attendance at

Presidential events. In light of the discrepancies between what is alleged to have occurred and

the language in the Advance Manual, the Court must consider this to be an “obvious alternative

explanation” that undermines the plausibility of Plaintiffs’ policymaking liability claims. See

Iqbal, 129 S. Ct. at 1951-52 (rejecting an inference of purposeful discrimination by high-ranking

officials because of the “obvious alternative explanation” for increased arrests and detention of

Arab Muslims with suspected links to terrorism); Twombly, 550 U.S. at 567-68 (holding that

allegations of parallel conduct do not plausibly give rise to a conspiracy claim when past

economic conditions provide an “obvious alternative explanation” for market behavior).

Accordingly, the Court finds that Plaintiffs have failed to state a plausible claim against

Defendants for policymaking liability under Bivens.

       The Court also notes that Plaintiffs rely primarily on conclusory allegations to establish

Defendants’ personal involvement in developing national policies. Although Defendants

undoubtedly had the formal power to formulate a national policy, Plaintiffs must establish that

Defendants actually exercised that power to generate improper practices. See Haynesworth, 820

F.2d at 1264. In this case, the Advance Manual provided by Plaintiffs is dated October 2002,


                                                 19
which suggests that the challenged policies were actually in place before either Jenkins or Beyer

became Director of the Advance Office. Furthermore, Plaintiffs do not allege that Defendants

were aware of the other alleged incidents in which individuals were excluded from Presidential

events based on their viewpoints, nor do they allege that Defendants intended for the Advance

Manual to be applied in that manner. Plaintiffs do allege generally that “[t]he White House

Office of Presidential Advance equates anyone who expresses disagreement with the President’s

views as someone who might disrupt an event,” id. ¶ 30, but the Advance Office is not a

defendant in this case. Given the limited scope of policymaking liability under Bivens, Plaintiffs’

allegations fall short of establishing that Defendants were responsible for creating an

unconstitutional policy.

       For these reasons, the Court finds that Plaintiffs’ well-pleaded facts do not plausibly show

that either Defendant exercised his policymaking authority to promulgate an unconstitutional

policy that caused Plaintiffs’ ejection from the March 2005 event. Therefore, the Court shall

dismiss the Amended Complaint for failure to state a claim upon which relief can be granted

pursuant to Rule 12(b)(6). Because the Court rules on this basis, it does not reach Defendants’

arguments regarding the defense of qualified immunity or their alternative motions for summary

judgment.

                                       IV. CONCLUSION

       For the foregoing reasons, the Court shall GRANT Defendant Jenkins’s [34] Motion to

Dismiss. The Court shall treat Defendant Beyer’s [33] Motion for Summary Judgment as a

motion to dismiss and GRANT it. Plaintiffs’ Amended Complaint shall be DISMISSED without

prejudice.


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       An appropriate order accompanies this Memorandum Opinion.



Date: July 13, 2011

                                                     /s/
                                                COLLEEN KOLLAR-KOTELLY
                                                United States District Judge




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