Monday, May 18, 2009
A split (5-4) Supreme Court ruled today in Ashcroft v. Iqbal that allegations in an ex-detainee's complaint against former AG Ashcroft and FBI Director Mueller for constitutional torts while in custody after 9/11 were too conclusory to withstand a motion to dismiss. The ruling leaves open the narrow possibility that the plaintiff Iqbal could amend his complaint to comply with the heightened pleading requirement, thus keeping Ashcroft and Mueller in the suit at least into discovery. But as a practical matter the Court made it all but impossible for Iqbal or other plaintiffs to sustain a civil suit for constitutional violations against high-level officials.
Iqbal sued Ashcroft, Mueller, and numerous other federal officials for detaining him as a person "of high interest" on account of his race, religioin, or national origin, in violation of his First and Fifth Amendment rights. He alleged that Ashcroft and Mueller "knew of, condoned, and willfully and maliciously agreed" to detain him because of his religion, race, or national origin," that Ashcroft was the "principal architect" of the policy, and that Mueller was "instrumental" in adopting and executing the policy, among other allegations.
The District Court denied Ashcroft and Mueller's motion to dismiss, because, relying on Conley v. Gibson, "it cannot be said that there [is] no set of facts on which [Iqbal] would be entitled to relief as against" Ashcroft and Mueller. Ashcroft and Mueller filed an interlocutory appeal in the Second Circuit. As that appeal was pending, the Supreme Court decided Bell Atlantic Corp. v. Twombly, which refined the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss and retired the no-set-of-facts standard under Conley. The Second Circuit applied the Twombly standard and upheld the District Court's denial.
The Supreme Court applied Twombly and reversed. The Court ruled that vicarious liability claims are not actionable under Bivens, and so Iqbal had to plead--in more than a merely conclusory way--that Ashcroft and Mueller, through individual actions, violated the Constitution. Here, in alleging invidious discrimination in violation of the First and Fifth Amendments, Iqbal had to plead that Ashcroft and Mueller engaged in purposeful discrimination--more than "intent as volition or intent as awareness of consequences." This Iqbal failed to do. The Court:
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . .
Iqbal's complaint failed on both:
[The] bare assertions [in the complaint, and quoted above] amount to nothing more than a "formulaic recitation of the elements" of a constitutional discrimination claim, namely, that petitioners adopted a policy "'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." As such, the allegations are conclusory and not entitled to be assumed true. . . .
Taken as true, [Iqbal's] allegations are consistent with petitioners' purposefully designating detainees "of high interest" because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.
What "likely explanations"? The post-9/11 arrest and detention policy resulted in disproportionate detention of Arab Muslims, because 9/11 hijackers were Arab Muslims and members of an Islamic fundamentalist organization. According to the Court, "[i]t should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of theri suspected link to the attacks would produce a disprate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims." Because of this likely alternative explanation, the Court ruled that Iqbal's complaint "has not 'nudged [his] claims' of invidious discrimination 'across the line from conceivable to plausible.'"
While the Court left open the theoretical possibility that Iqbal could amend his complaint to comply with the higher pleading standard in Twombly's "two working principles," the practical effect of the case will be to severely curtail constitutional tort claims against high-level officials. Plaintiffs often simply lack the information about high-level officials to plead a case with requisite specificity and plausibility to satisfy the standard. If Iqbal's claims were insufficient on these points, just imagine the claims a plaintiff would need to make--and where a plaintiff would get the information to support those claims.
And more: As Justice Souter wrote in dissent (for himself and Justices Stevens, Ginsburg, and Breyer), Ashcroft and Mueller conceded that "a supervisor's knowledge of a subordinate's unconstitutional conduct and deliberate indifference to that conduct are grounds for Bivens liability"--acknowledging an alternative, non-vicarious liability form of supervisory liability. Iqbal even more clearly satisfied this standard, but the Court apparently ignored the concession. The result, according to Souter: The Court "eliminat[ed] Bivens supervisory liability entirely."