Monday, July 20, 2009
Adam Liptak reports in the NYT on the impact of Ashcroft v. Iqbal, this term's decision dismissing a plaintiff's Bivens complaint against high-level federal officials for failure to describe with enough detail the officials' actions that led to the alleged constitutional violations. Iqbal thus requires a more specific pleading standard for such actions, and, as we predicted when it came down, has already resulted in a number of dismissals.
Liptak reports that lower courts have cited Iqbal more than 500 times in the last two months. Liptak:
In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper. "It obviously licenses highly subjective judgments," said Stephnen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School. "This is a blank check for federal judges to get rid of cases they disfavor."
Recall that rather than accepting the plaintiff's allegations as true in Iqbal, the Court created and interposed its own "likely explanations" between the plaintiff's factual allegations and its legal conclusions. Thus, rather than accepting Iqbal's allegations that the defendants detained him on account of his race, religion, or national origin in violation of his First and Fifth Amendment rights, the Court wrote that
[i]t should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the [9/11 attacks] would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.
When Iqbal gives this kind of roadmap for lower courts to interpose their own explanations and defenses, it's easy to see how Professor Burbank is right: "This is a blank check for federal judges to get rid of cases they disfavor."