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Ashcroft v. Iqbal, No. 07-1015 (U.S. S. Ct. May 18, 2009)

| May 18, 2009 | Daily Developments in EEO Law |

The Supreme Court, 5-4, kicks up the Fed. R. Civ. P. 8 pleading standards a notch in this First and Fifth Amendment Bivens action against the former Attorney General and the head of the FBI. After today, civil rights plaintiffs will have to be more thoughtful about how they frame their complaints to avoid pleading themselves out of court.

Ashcroft v. Iqbal, No. 07-1015 (U.S. S. Ct. May 18, 2009):  The plaintiff alleged that in the wake of 9/11, federal law enforcement instituted a blanket policy of rounding up an detaining thousands of Arab Muslims and confining those of “high interest” under unlawful conditions, solely on account of race, religion and nationality and for no legitimate penological interest. Defendants included 34 current and former federal officials and 19 “John Doe” federal corrections officers. 

He particularly alleged — as relevant to the particulars of this decision — that Attorney General John Ashcroft was the policy’s “principal architect” and FBI Director Robert Mueller was “instrumental” in its adoption and execution:

The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges that ‘the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11.’ Id., ¶47, at 164a. It further alleges that ‘[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.’ Id., ¶69, at 168a. Lastly, the complaint posits that petitioners ‘each knew of, condoned, and willfully and maliciously agreed to subject’ respondent to harsh conditions of confinement ‘as a matter of policy, solely on account of [his]
religion, race, and/or national origin and for no legitimate penological interest.’ Id., ¶96, at 172a-173a. The pleading names Ashcroft as the ‘principal architect’ of the policy, id., ¶10, at 157a, and identifies Mueller as ‘instrumental in [its] adoption, promulgation, and implementation.’
Id., ¶11, at 157a.”

On a motion to dismiss, the district court denied qualified immunity as to Ashcroft and Mueller, and the Second Circuit in a collateral appeal affirmed.

The Court addresses There principal issues in its decision, signed by Judge Kennedy: appellate jurisdiction under Mitchell v. Forsyth, 472 U. S. 511 (1985); the existence of supervisory liability under Bivens, and the sufficiency of the pleadings under Rule 8.  The majority answers yes, no and no.  As to jurisdiction, the Court (with no objection by the dissent) holds that courts of appeals may rule on interlocutory review of denial of qualified immunity, even when the  district court decision is based on the inadequacy of the pleadings (as opposed to a challenge based on “clearly-established” law).  The issue of imputing liability to senior figures in a federal agency gets a workout between the majority and dissent, and — while interesting — I will just cut to the actual holding:

“[R]espondent believes a supervisor’s mere knowledge of his subordinate’s discriminatory purpose amounts to the supervisor’s violating the Constitution. We reject this argument. Respondent’s conception of ‘supervisory liability’ is inconsistent with his accurate stipulation that petitioners may not be held accountable for the misdeeds of their agents. In a §1983 suit or a Bivens action — where masters do not answer for the torts of their servants — the term ‘supervisory liability’ is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct. In the context of determining whether there is a violation of clearly established right to overcome  qualified immunity, purpose rather than knowledge is required to impose Bivens liability on the subordinate for unconstitutional discrimination; the same holds true for an official charged with violations arising from his or her superintendent responsibilities.”

This holding sets the stage for the majority to rule on whether the plaintiffs’ allegations are sufficient to rope in Ashcroft and Mueller, and now we get to the heart of the opinion.

The majority holds that the plaintiff’s bare assertion of Ashcroft/Mueller’s responsibility for his unlawful confinement, without facts to make the assertion plausible, does not pass the bar recently set by the Court in Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007).  A few pages might have sufficed to explain that mere accusation of responsibility, without facts to make it plausible, no longer makes the mark under Rule 8. But we get ten pages explaining and expanding upon Twombly.  (One note for employment-law litigators — no citation to the unanimous decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), so that precedent remains sound.)  The court makes clear that its 2007 precedent applies to all civil actions, not just antitrust cases, and that “the tenet that a court must accept as true all of the allegations constrained 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.” The court also warns about complaints that declare only the possibility,  rather than affirmative plausibility, of liability will not survive dismissal.

This leads us to the new analysis that district courts will use to analyze a complaint on a motion to dismiss:

“In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.”

Applying this analysis, the majority first picks off the general assertions that Ashcroft was the “principal architect” and Mueller an “instrumentality” in carrying out the illegal detainment.  These conclusions receive no weight at all.  Second, it rejects as not plausible the non-conclusory factual allegations:

“The complaint alleges that ‘the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11.’ Complaint ¶47, App. to Pet. for Cert. 164a. It further claims that ‘[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.’ Id., ¶69, at 168a. Taken as true, these 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.

“The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim Osama bin Laden and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that ‘obvious alternative explanation’ for the arrests, Twombly, supra, at 567, and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.”

Moreover, the complaint raises a redressability issue, according to the majority.  The complaint was not about the dragnet that led to his initial arrest, but his eventual confinement in a super-max prison, so the allegations against Ashcroft and Mueller do not establish any valid connection between their executive decisions and the plaintiff’s allegedly illegal terms of incarcerations.

In some respects, this case seems sui generis, given the open and notorious nature of the post-9/11 history. But the Court is calling for district court judges to apply their experience and common sense to all civil complaints to determine their fitness for surviving dismissal and commencing discovery.  So we can assume that district court judges in the future will be making judgment calls about whether a complaint spells out, factually, a case with a fighting chance of success.  They can draw on their experience with (or hostility towards) discrimination cases to say, in effect, “this is going nowhere and I am not going to burden the defendant with the costs of e-discovery etc. going forward, so I will strangle the case in the crib.”

So the lesson is — include all favorable facts (in harassment cases, in particular, recite enough facts to establish a severe or pervasive hostile work environment) and do not anticipate defenses (any facts justifying the employer’s adverse action will be deemed true, unless countermanded on the face of the complaint).  Of course, denials of motions to dismiss are not customarily appealable, so judges bear little risk of reversal if they deny a motion.  But judges who are want to grant summary judgment now have another vehicle for stifling civil litigation.  So beware!

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