The sins of the father fail the Iqbal pleading test

The Constitution does not actually say this, but there is a right to intimate association under the First Amendment. The contours of that right are not clear, but they do not protect a former Assistant District Attorney in Brooklyn who lost his job after the DA learned that his father was running for office against a State Senator who was being prosecuted by his office.

The case is Sharpe v. City of New York, a summary order dated March 27.  I represented Sharpe on appeal. The DA was prosecuting Kenneth Parker, a politico who got caught up in some alleged wrongdoing. Sharpe was not involved in that prosecution. His father was running against Parker. Sharpe was fired over this. Here is how the Second Circuit (Chin and Droney) summarizes the case:

The amended complaint sets forth the following facts: (1) Sharpe's father, Wellington Sharpe, was running for public office, and had run on several occasions in the past, against Kevin Parker; (2) Parker was the subject of a criminal prosecution brought by the Red Zone General Trial Bureau of the Kings County District Attorney's Office (the "KCDAO"); (3) Wynton Sharpe was an Assistant District Attorney in the Red Zone General Trial Bureau of the KCDAO at the time of the Parker prosecution; (4) the KCDAO employee manual indicated that Assistant District Attorneys have a "duty to avoid both actual conflicts of interest and even the appearance of any improper political motive or bias in the conduct of any prosecution"; (5) on August 11, 2010, Amy P. Feinstein, the Chief Assistant District Attorney in the KCDAO, and James Leeper, the Bureau Chief of the Red Zone, asked Sharpe whether his father was Wellington Sharpe; (6) as soon as he told Leeper and Feinstein that his father was Wellington Sharpe, Wynton Sharpe was suspended from the KCDAO, and was ultimately fired.

The government cannot retaliate against you because of your close family associations. The father-son relationship is close enough. The Court of Appeals assumes that Sharpe has to allege that his termination was an arbitrary or undue burden on that association. The Court finds that the complaint does not state a cause of action because Sharpe does not allege that he disclosed his father's race against Parker until someone asked him about it. While Sharpe alleges "upon information and belief" that his father's campaign against Parker was well known in the office, the lack of factual detail on this is too conclusory to avoid dismissal under Rule 12.

Under the Supreme Court's new Iqbal standards governing Rule 12 dismissals, the plaintiff has to allege a "plausible" claim, not a possible claim. The Court of Appeals says,

At best, Sharpe's complaint simply alleges facts that are "consistent with" his theory that he was targeted for suspension and termination due to his relationship with his father, but are also consistent with a far more likely explanation: that he was suspended and terminated because the KCDAO believed that he violated its policy. Although Sharpe asserts that he did not work on the Parker prosecution and was not "interested [in] or aware of any of the facts relating to the prosecution," he does not contend that he was unaware of the prosecution. Sharpe's mere employment in the unit that was engaged in a prosecution of Sharpe's father's political rival obviously posed a risk of creating "the appearance of . . . improper political motive or bias," yet Sharpe does not contend he did anything to mitigate this appearance.

So what the Second Circuit doing is weighing the plausibility of the parties' arguments under Rule 12. Is this what the Supreme Court intended when it identified the need for plausible pleading under Iqbal? Does anybody want to take bets on how the Supreme Court would answer that question?