THE SUPREME COURT’S DECISION IN ASHCROFT V. IQBAL: NEW BARRIERS FOR CIVIL RIGHTS PLAINTIFFS
By Melanie Hirsch, Public Justice Brayton-Baron Fellow
On May 18, 2009, the Supreme Court issued its 5-4 decision in Ashcroft v. Iqbal, No. 07-1015, --- S.Ct. ----, 2009 WL 1361536 (May 18, 2009), a case that will likely have enormous implications for civil rights plaintiffs seeking to hold high-level government officials accountable for violating the Constitution.
Javaid Iqbal, a Pakistani Muslim living in New York, was among a large number of Arab-Americans and Muslims rounded up and detained in the immediate aftermath of 9/11. He was held for more than 150 days in a maximum security unit at Brooklyn’s Metropolitan Detention Center, where he alleged that he was subjected to solitary confinement, unnecessary and abusive strip searches, beatings, and other abusive treatment. After his release, Iqbal brought suit against the individual officers who had mistreated him, as well as former Attorney General John Ashcroft and FBI Director Robert Mueller. Iqbal alleged that Ashcroft was the architect of the policy of rounding up men of Muslim or Arab descent and that Mueller was charged with implementing that policy. He sued both officials under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), for detaining him because of his race, religion, or national origin, in violation of the First Amendment’s Free Exercise Clause and the equal protection component of the Fifth Amendment’s Due Process Clause.
Iqbal has received a great deal of attention in the popular press because of its subject matter—national security and the confinement of thousands of Muslim and Arab “persons of interest” after 9/11. Aside from that issue, however, Iqbal has dramatic implications for access to justice. First, Iqbal institutes new, heightened pleading requirements for all civil complaints. Second, as a practical matter, defendants may argue that Iqbal provides high-ranking government officials with a free pass from liability for their subordinates’ unconstitutional acts. Both of these developments have the potential to create significant roadblocks for plaintiffs seeking to hold high-level government officials accountable for violating the Constitution.
First, Iqbal imposes a new form of “plausibility pleading” on plaintiffs’ complaints. Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain only a “short and plain statement of the claim showing that the pleader is entitled to relief.” Historically, this statement need not require specific facts so long as it “give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). On several occasions, the Court has emphasized that Rule 8(a)(2) means what it says and, accordingly, has rejected defendants’ attempts to impose heightened pleading standards on plaintiffs. See, e.g., Erickson v. Pardus, 551 U.S. 89 (2007) (per curiam); Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002); Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993). But in the 2007 case of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Court for the first time suggested that a plaintiffs’ complaint must do more than give the defendant fair notice, by stating that “[i]n applying these general standards to a [claim under § 1 of the Sherman Act] we hold that stating such a claim requires a complaint with enough factual matter (taken as true)” to render the complaint “plausible.” Id. at 555.
On its face, Twombly appeared to be limited to antitrust cases. But in Iqbal, the Court conclusively established that Twombly’s plausibility standard applies to all civil complaints. Applied to the facts in Iqbal, this new standard meant that Iqbal’s claims against Ashcroft and Mueller could not survive a motion to dismiss, even though the complaint clearly alleged that Ashcroft was the “principal architect of the policies and practices challenged” and that Mueller was “instrumental” in their “adoption, promulgation, and implementation.” The Court, rather arbitrarily, deemed those allegations to be “conclusory” rather than factual and therefore denied them the assumption of truth normally given to allegations under 12(b)(6). Instead, the Court determined that “the more likely explanation,” based on “its judicial experience and common sense”—the Court’s troubling new standard for determining whether a claim is plausible—was that thousands of men of Arab and Muslim descent were being rounded up and subjected to harsh conditions as part of a reasonable attempt “to keep suspected terrorists in the most secure conditions available.”
Notice pleading was designed to obviate the need for plaintiffs to plead specific facts that would be unavailable to them prior to discovery. But now, defendants are likely to argue—citing Iqbal and Twombly—that plaintiffs should be put in the impossible position of having to plead specific facts before they have had the benefit of discovery. Plaintiffs suing government defendants can obtain some of this information by filing FOIA requests before filing suit, but even that information may not be enough. Moreover, judges now have authority to use their “judicial experience and common sense” at the motion to dismiss stage to conjure up “more likely explanations” than the violations of the law that the plaintiff alleges. This subjective standard could prove devastating to civil rights claims. For example, how many judges faced with a Title VII discrimination claim will simply review their own discrimination-free lives to conclude that it is “more likely” that no discrimination occurred, and therefore dismiss meritorious claims?
The second way in which Iqbal may limit plaintiffs’ access to justice is via its pronouncements on the supervisory liability of government officials. Ashcroft and Mueller had conceded that they could be liable for their subordinates’ unconstitutional conduct if they “had actual knowledge of the assertedly discriminatory nature of the classification of suspects as being ‘of high interest’ and they were deliberately indifferent to that discrimination” (emphasis added); the question before the court was whether constructive knowledge could suffice for supervisory liability. Despite this concession, the Court found actual knowledge to be insufficient for a finding of supervisory liability. Instead, the Court characterized “actual knowledge” as “mere knowledge” and required, for the first time, that the high-ranking officials themselves directly violate the law, regardless of the breadth of their knowledge or the depth of their indifference. In the past, the Court has circumscribed the kinds of claims that plaintiffs can bring under Bivens. See, e.g., Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001); Schweiker v. Chilicky, 487 U.S. 412 (1988). Now, with Iqbal, the Court has imposed a dramatic new limit for Bivens claims: a limit on who can be held accountable.
High-ranking government officials may pounce on this pronouncement—on an issue that the parties had not fully briefed and was, arguably, not even properly before the court—to try to avoid accountability. At the same time, however, some civil rights plaintiffs may be able to argue that Iqbal’s holding on supervisory liability does not apply to them. First, Iqbal by its terms applies only to Bivens liability and not the liability of state officials under 42 U.S.C. § 1983. Second, Iqbal’s holding on supervisory liability may be limited to constitutional violations requiring intent; the Court stated that for officials charged with supervisory liability, like subordinates charged with unconstitutional discrimination, plaintiffs must show “purpose rather than knowledge . . . to impose Bivens liability.” (emphasis added). Iqbal may therefore not be relevant to supervisory liability for a wide range of constitutional violations that do not require plaintiffs to demonstrate purpose—for example, challenges to conditions of confinement under the Eighth Amendment. Despite these two potential loopholes, high-ranking government officials are likely to seize on the Court’s language as a way to immunize themselves from liability for constitutional violations, and plaintiffs may be kicked out of court unless they somehow obtain facts about supervisors’ intent, which they will almost never be able to do prior to discovery.
Iqbal is likely to have significant long-term consequences for civil rights plaintiffs. In deciding Iqbal, the Court was likely influenced by the specific circumstances surrounding the terrorist attacks of 9/11. But 9/11 does not justify creating heightened pleading standards for all civil cases and limiting civil rights plaintiffs’ ability to hold accountable high-ranking government officials who knew of constitutional violations taking place on their watch but did nothing.
about the author
Melanie Hirsch is the Brayton-Baron Fellow at Public Justice. Her work at Public Justice includes authoring an amicus curiae brief in Komarova v. National Credit Acceptance and an article discussing issues that commonly arise in employment arbitrations.