Illinois Bar Journal

December 2009Volume 97Number 12Page 598

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Iqbal: a “dangerous” tightening of federal pleading standards?

Critics of this game-changing Supreme Court ruling argue that it will deny a day in court to large numbers of deserving litigants.

Perhaps the most important decision this year from the U.S. Supreme Court is Ashcroft v Iqbal, 129 S Ct 1937 (2009), which established stricter standards for pleading in federal civil cases. In less than half a year since its release, lower courts have already cited it almost 3,000 times.

Justice ruth Bader Ginsburg, who dissented from the opinion, has termed its impact "dangerous." Professor Stephen B. Burbank of the University of Pennsylvania Law School was quoted in The New York Times as saying Iqbal is "a blank check for federal judges to get rid of cases they disfavor." And as this issue of the IBJ was going to press, the House Judiciary Committee was holding a hearing called "Access to Justice Denied-Ashcroft v Iqbal."

The facts and lower- court rulings

Iqbal, a Pakistani Muslim, was arrested and detained on criminal charges after September 11, 2001, as part of a vast anti-terrorism investigation conducted by the FBI. Claiming a number of constitutional deprivations while in federal custody, he filed a lengthy complaint against various public officials, including John Ashcroft, the former Attorney General of the United States, and robert Mueller, the FBI Director.

Among other things, Iqbal alleged in his complaint that the FBI, under Mueller's direction, arrested and detained thousands of Arab Muslim men as part of its investigation of the events of September 11, 2001, that Ashcroft and Mueller approved holding those detain-ees in highly restrictive confinement until they were cleared by the FBI, and that Ashcroft and Mueller agreed to subject Iqbal to harsh conditions of confinement solely on account of his religion, race, and/or national origin and not for any legitimate reason.

Ashcroft and Mueller moved to dismiss Iqbal's lawsuit, asserting qualified immunity and arguing that the allegations of the complaint were not sufficient to show their own involvement in unconstitutional conduct. The district court denied the motion, saying it was impossible to find that no set of facts existed that would entitle Iqbal to relief.

While the case was pending before the U.S. Second Circuit Court of Appeals, the Supreme Court decided Bell Atlantic Corp v Twombly, 550 US 544 (2007), which retired the familiar "no set of facts" test upon which the district court had relied. Finding that Twombly called for a flexible standard of "plausibility," so that litigants could be required to amplify their claims with some factual allegations to render their claims plausible, the court of appeals found that the context of Iqbal's complaint required no amplification and upheld the denial of the motion to dismiss. The Supreme Court granted certiorari.

No more notice pleading?

The court first discussed the elements of the claim against Ashcroft and Mueller, noting that to state a claim, the plaintiff would have to plead sufficient facts to show that those defendants had adopted the detention policies at issue for the purpose of discriminating on the grounds of race, religion, or national origin and not for any nondiscriminatory reason. Mere knowledge of their subordinates' use of discriminatory criteria, the court said, was not sufficient.

The court then cited FrCP 8(a)(2), which requires a pleading to contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Quoting from and clarifying Twombly, the court said that standard does not require detailed factual allegations, but does require "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." rather, it continued, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal at 1949, quoting Twombly at 570.

Although legal conclusions may provide a framework for the complaint, the court said, they will not, by themselves, open the door to the plaintiff to conduct discovery. rather, legal conclusions in a complaint must be supported by factual allegations. Courts must then analyze complaints in the light of their own experience and common sense to determine whether the claims stated are not merely conceivable, but plausible.

Applying these principles to Iqbal's complaint, the court found the bulk of his allegations merely conclusory, and, therefore, not entitled to any presumption of truth. Even amplified by Iqbal's factual allegations, the court found that, given the more likely explanations, the complaint did not plausibly establish a discriminatory purpose.

Among other things, the court said a disparate, incidental impact on Arab Muslims from legitimate law enforcement policies in the wake of the 9/11 attacks was unsurprising. Moreover, the court said, Iqbal had pleaded no facts that plausibly showed discriminatory intent on the parts of either Ashcroft or Mueller.

Chief Judge James Holderman and Magistrate Judge Morton Denlow of the District Court for the Northern District of Illinois, both members of ISBA's Federal Civil Practice Section Council, commented on Iqbal's effect. Hold-erman says it's unclear whether judges are dismissing more cases now than before Iqbal but that "all judges are scrutinizing all civil complaints more carefully within their specific contexts to determine whether there are enough facts alleged to make the claims presented plausible, not just conceivable." Opines Denlow, "Iqbal does create an issue of access to justice, because in many cases the evidence is in the exclusive possession of defendants."

Helen W. Gunnarsson is an attorney and writer in Highland Park. She can be reached at <>.

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