Iqbal and the plausibility test in constitutional cases

The Supreme Court's decision on May 18 in Ashcroft v. Iqbal is notable for its holding that the former attorney general and FBI director cannot be held liable for post 9/11 detention policies. But other aspects of this decision are relevant to civil litigators who sue government officials under 42 U.S.C. sec. 1983.


In 2007, the Supreme Court reshaped the pleading rules in Bell Atlantic v. Twombly, 550 U.S. 544, holding that a complaint satisfies the federal rules if it alleges a "plausible" (as opposed to a possible) claim for relief. Until the Courts of Appeal amplify this standard, application of this test will depend on the judge. As the Supreme Court tells us in Iqbal, "Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."


The plausibility standard under Iqbal in Section 1983 claims dooms the case against John Ashcroft and former FBI Director Robert Mueller. As a Pakistani Muslim, Iqbal sued these officials (among others) after he was detained in a post-9/11 sweep, claiming that he was brutalized in a detention center in New York City. Iqbal alleges that Ashcroft and Mueller are liable because they "knew of, condoned, and willfully and maliciously agreed to subject [him] 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." He further alleged in the complaint that Ashcroft was the "principal architect" of this policy and Mueller was "instrumental" in adopting and executing it.


Let's face it: allegations like this in constitutional claims are commonplace in drafting complaints against supervisory officials. Not anymore. While Twombly was a case involving the Sherman Act, the Supreme Court makes it clear that it applies in other contexts, including Section 1983 complaints. These complaints will have to be more specific to repel a motion to dismiss under Rule 12. Twombly is truly the law of the land.

But there's more. The plausibility standard under Twombly requires the trial court under Rule 12 to really think about whether the complaint can go forward. Who knows how this will shake out in routine civil rights cases involving employment discrimination or local police abuses. But the plausibility test kills Iqbal's case against Ashcroft and Mueller. As the Supreme Court applies the standard, it is not enough for the facts in the complaint to be consistent with a constitutional violation. It must be plausible. There is a difference. The Court says, "The plausibility standard is not akin to a 'probability requirement,' but it ask for more than a sheer possibility that a defendant has acted unlawfully."

Under this standard, in the context of the post-9/11 effort to prevent another terror attack, Iqbal's claim that Ashcroft and Mueller designated detainees "of high interest" because of their race, religion or national origin is not plausible in light of the other, obvious reason why these officials rounded up detainees, i.e., because the 9/11 hijackers were "Arab Muslims who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group."


The realities of the post-9/11 world doom Iqbal's case. The Court explains, "On the facts [Iqbal] alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegal 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, and the purposeful, invidious discrimination [Iqbal] asks us to infer, discrimination is not a plausible conclusion."


What makes this decision remarkable is that the Supreme Court found other reasons why the plaintiff was rounded up, all without the benefit of discovery. The Court takes judicial notice of what happened after 9/11, when the government was reacting to the terror attacks. Remember, this case comes before the Supreme Court in a Rule 12 posture, where the court has nothing but the complaint and no other evidence to assist it.


While it may be that there were other reasons for the government to round up Iqbal, I wonder if this kind of legal reasoning awaits more routine civil rights cases. Will district judges read a civil rights complaint and weigh other reasons for the plaintiff's mistreatment under the plausibility standard, dismissing the case if other "obvious" reasons explain that mistreatment? As the Court states in its decision, this is a context-specific test. It may be that plausibility is too high a burden for civil rights plaintiffs alleging serious misconduct by high-ranking officials like Ashcroft and Mueller. Or this reasoning could tempt trial courts to more readily dismiss more garden-variety civil rights cases. The Supreme Court doesn't say one way or the other.