September 9, 2009
Ninth Circuit: Al-Kidd's Complaint Satisfied Iqbal's Pleading Standard
A divided three-judge panel of the Ninth Circuit ruled last Friday that plaintiff Abdullah al-Kidd pleaded sufficiently specific facts to withstand former AG John Ashcroft's motion to dismiss his case for unlawfully using the federal material witness statute, 18 U.S.C. Sec. 3144, to detain him preventatively, without charges.
The panel ruled that Al-Kidd's complaint satisfied the pleading standard that the Supreme Court articulated last term in Ashcroft v. Iqbal. Recall that in Iqbal the Court refined the pleading standard in Bell Atlantic Corp. v. Twombley and held that "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice [and] only a complaint that states a plausible claim for relief survives a motion to dismiss." The Court ruled that Iqbal's allegations were "conclusory and not entitled to be assumed true," and therefore failed to meet this standard. According to Adam Liptak at the NYT, the case was cited more than 500 times in the two months after it came down and, according to Prof. Burbank at Penn (quoted in Liptak's story), resulted in "a blank check for federal judges to get rid of cases they disfavor."
Al-Kidd nevertheless met the standard, according to the Ninth Circuit panel:
Here, unlike Iqbal's allegations, al-Kidd's complaint "plausibly suggest[s]" unlawful conduct, and does more than contain bare allegations of an impermissible policy. While the complaint similarly alleges that Ashcroft is the "principal architect" of the policy, the complaint in this case contains specific statements that Ashcroft himself made regarding the post-September 11th use of the material witness statute. . . . The specific allegations in al-Kidd's complaint plausibly suggest something more than just bare allegations of improper purpose; they demonstrate that the Attorney General purposefully used the material witness statute to detain suspects whom he wished to investigate and detain preventatively, and that al-Kidd was subjected to this policy.
The panel ruled that al-Kidd failed to meet the standard in a related claim, however. He failed to allege sufficiently specific facts to support his claim that Ashcroft directed his conditions of confinement in violation of the Fifth and Eighth Amendments--a claim very much like Iqbal's:
Similarly, al-Kidd's claims here that Ashcroft promulgated and approved the unlawful policy which caused al-Kidd "to be subjected to prolonged, excessive, punitive, harsh, unreasonable detention or post-release conditions." Contrary to the Sec. 3144 claim, however, the complaint does not allege any specific facts--such as statements from Ashcroft or from high ranking officials in the DOJ--establishing that Ashcroft had personal involvement in setting the conditions of confinement.
Al-Kidd, at 12320.
In the wake of Iqbal, the case leaves open the possibility that certain claims, sufficiently supported by, e.g., direct policy statements of officials, may survive a motion to dismiss. Between the complaint and the opinion, the case provides a roadmap for plaintiffs, at least for now in the Ninth Circuit.
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