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Michael C. Dorf

The Supreme Court Dismisses a 9/11 Detainee's Civil Lawsuit


Wednesday, May 20, 2009

On Monday, in Ashcroft v. Iqbal,the U.S. Supreme Court upheld a federal district court's dismissal of a lawsuit by a Pakistani man who alleged that, while he was in federal custody on immigration charges in the aftermath of 9/11, his jailors "kicked him in the stomach, punched him in the face, and dragged him across" his cell; gratuitously strip-searched him; and denied him the opportunity to pray--and that all of this was done to him pursuant to a policy of discrimination on the basis of race, religion, and national origin.

Iqbal eventually pleaded guilty to the immigration offenses and was deported, although he was never charged with any connection to terrorism or terrorists. The Supreme Court acknowledged that Iqbal could have a valid claim for damages against the particular jailors who attacked him, but held that his complaint did not provide sufficient detail in its allegations to enable him to proceed against former Attorney General John Ashcroft or former FBI Director Robert Mueller.

In this column, I shall explain how the ruling in Iqbal could prove to be immensely important for all civil litigation in the federal courts. I shall also lament how the Supreme Court, in its opinion, accepts the increasingly unbelievable narrative that was employed to pin the blame for the Abu Ghraib abuses on a few low-ranking "bad apples."

Notice Pleading Before and After the Twombly Case

In order to start a civil suit in federal court, a plaintiff files a complaint which, according to Federal Rule of Civil Procedure 8(a)(2), must contain "a short and plain statement of the claim showing that the pleader is entitled to relief."

How short? Until recently, it was a truism that the Federal Rules only required enough detail to put the defendant on notice of what the lawsuit concerns. Thus, Form 11, which accompanies the Rules and is thus supposed to be authoritative, gives the following example of a legally sufficient complaint: "On date, at place, the defendant negligently drove a motor vehicle against the plaintiff." That's all. It is harder to imagine a more "bare-bones" complaint; yet the Form makes clear that this suffices.

Nonetheless, two years ago, in Bell Atlantic v. Twombly, the Supreme Court threw the federal trial courts into near-chaos with its ruling about just what Rule 8 requires. While not purporting to abandon the practice of "notice pleading," the Court rejected as insufficient a complaint that alleged an antitrust conspiracy without providing much factual detail. As I explained in a column a few months later, Twombly led to considerable confusion in the lower federal courts. By my count (using the Westlaw database), Twombly has been cited by the lower federal courts nearly 10,000 times since it was decided. By comparison, Marbury v. Madison has been cited by those courts fewer than 100 times during that same period.

Nor are the citations of Twombly all perfunctory; far from it. The lower courts developed any number of explanations of the Twombly decision: It is a de facto requirement of factual specificity in antitrust cases or conspiracy cases; it is a requirement of factual specificity for otherwise implausible claims; it is a general "plausibility" standard; and more.

In Monday's ruling in Iqbal, the Supreme Court resolved some of the uncertainty but created further confusion as well.

What the Court Said About Rule 8 in Iqbal

Justice Kennedy's majority opinion in Iqbal rejected the view that Twombly requires any special rules for antitrust or conspiracy cases. Rather, Kennedy said, in all civil cases in the federal courts, the Rule requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation."

It is hard to see how, exactly, that statement of the Rule is consistent with the "unadorned" allegation of negligence that the authoritative Form 11 itself accepts. But even putting that objection to one side, the Iqbal complaint was not an unadorned accusation of harm. It was quite specific as to where, when, and how Iqbal suffered abuse at the hands of federal authorities.

The majority nonetheless objected to the "conclusory" allegation that the defendants "knew of, condoned, and willfully and maliciously agreed to subject" Iqbal to abuse "as a matter of policy, solely on account of [his] religion, race, and/or national origin." Characterizing these allegations as "bare assertions," the Court said that they are not entitled to be taken as true, in light of what the Court saw as the obvious alternative explanation: That in an investigation focusing on al Qaeda, the people detained would be disproportionately Arab and Muslim--not because of prejudice against Arabs and Muslims, but because that is where the leads would take the authorities.

Certainly, the Court admitted, it is possible that the defendants authorized abusing Iqbal and other Muslim and Arab detainees because of impermissible discrimination. However, and crucially, the Court added that the disparate impact arising out of an investigation into specific Muslim and Arab suspects is such an "obvious alternative explanation," that the attribution of a purposeful policy must be backed by specific facts, alleged in the complaint, showing complicity by the high-ranking defendants.

Assessing Iqbal as a Civil Procedure Precedent

The policy considerations that undoubtedly under-wrote the Supreme Court's decision in Iqbal are not insubstantial. Notice pleading allows plaintiffs to commence costly discovery against defendants who may ultimately prove to be innocent of any wrongdoing.

Still, even if one takes that view, it is not at all clear why the Supreme Court had the authority to abandon notice pleading. In 1993, in Leatherman v. Tarrant County NICU, the late Chief Justice Rehnquist wrote for a unanimous Court that any changes to Rule 8 or Rule 9 (which establishes a heightened pleading standard for some circumstances but not for "intent, knowledge, and other conditions of a person's mind") "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation."

The best that might be said for the ruling in Iqbal is that it resolved some of the confusion that Twombly had created. We now know that Twombly applies beyond the antitrust and conspiracy contexts, for example. Yet the clarity that Iqbal seemingly provides may well prove illusory.

Although Justice Souter, who authored the Twombly majority opinion, dissented in Iqbal, in one important respect, the cases are very similar: Both opinions purport to leave most of the prior law undisturbed. Of particular relevance going forward will be the question of how to reconcile Iqbal with a unanimous 2002 opinion written by Justice Thomas, Swierkiewicz v. Sorema N.A.

In Swierkiewicz, the Court held that a complaint alleging unlawful discrimination did not have to satisfy a heightened pleading requirement. The complaint in that case was said to be sufficient because it "detailed the events leading to [the plaintiff's] termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination." By contrast with Iqbal, the Court in Swierkiewicz did not ask whether there was an "obvious alternative explanation,"--such as the possibility that Swierkiewicz was not as good at his job as the workers retained--but simply accepted the complaint's allegations as true.

Swierkiewicz and Iqbal both dealt with the question of what sort of factual allegations of discrimination suffice for a civil lawsuit to survive a motion to dismiss. Yet remarkably, neither the majority nor the dissent in Iqbal even cited Swierkiewicz. The Twombly opinion did cite Swierkiewicz, but Justice Souter explained that that case only rejected a formal heightened pleading standard; he reiterated that, as a formal matter, Twombly also was not creating a heightened pleading standard.

The Swierkiewicz opinion did, however, say that the specific complaint in that case was legally sufficient to survive a motion to dismiss, while the Court in Twombly and Iqbal said that the complaints in those cases were inadequate. Therefore, we can now expect to see literally thousands of lower federal court cases in which attorneys argue over whether some particular complaint is more like the complaint in Swierkiewicz or more like the complaints in Twombly and Iqbal.

Rule 1 of the Federal Rules of Procedure instructs that the rules "should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding." The expected further procedural wrangling over pleadings is at odds with that goal. Accordingly, the Federal Rules Advisory Committee--a group of judges, law professors, and lawyers who propose amendments to the rules--should take steps to clarify exactly what is required in a civil complaint. If the Committee fails to act, or if the Supreme Court blocks adoption of amendments the Committee proposes, then Congress can and should step in.

Continuing the "Few Bad Apples" Narrative

Beyond the implications for federal court procedure, Iqbal is a troubling case as well for what it says about how a majority of the Supreme Court views allegations of government wrongdoing. When the Abu Ghraib prisoner abuse scandal broke, the government tried to pin the blame on a small number of low-level members of the armed forces. As Philip Gourevitch notes in a recent essay in The New Yorker, only one of them remains in prison: Charles Graner.

Yet, as Gourevitch also notes, the recently-disclosed "torture memos" show that one technique, euphemistically described by the Justice Department as "walling," may be exactly what Graner was doing when he "bashed" an Iraqi prisoner "against a wall." The more we learn about detainee treatment by the Bush Administration at Abu Ghraib, Guantanamo Bay, and CIA black sites, the more it appears that abuses were, in fact, systematic policy, rather than isolated deviations by a few bad apples. There is no reason to think that matters were necessarily different at the Administrative Maximum Special Housing Unit of the Metropolitan Detention Center in Brooklyn, New York--where Iqbal suffered his alleged torments.

Perhaps the abuse described in Iqbal's complaint was all the doing of a few sadistic guards. Justice Kennedy says that as between the alternative explanation of unintentional disparate impact and "the purposeful, invidious discrimination" that Iqbal asked the Court to infer, "discrimination is not a plausible conclusion." But given everything else we know about the treatment of detainees under the Bush Administration, it is the Court's dismissal of Iqbal's allegations that lacks plausibility.

Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at

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