AFJ Scholarship: Ashcroft v. Iqbal and government officials’ legal accountability to victims of human rights abuses

By Peter Laumann
AFJ Dorot Fellow

Javaid Iqbal was one of hundreds of Muslim Americans rounded up – with no accusation or evidence of wrongdoing – as part of the Bush Administration’s response to the events of September 11, 2001. His case ultimately reached the Supreme Court, which by a 5-4 vote in Ashcroft v. Iqbal rewrote the rules of civil procedure and made it more difficult for all federal plaintiffs to have their claims heard in court.

This aspect of Iqbal has been widely examined and lambasted by civil procedure experts, who criticize the Court for sweeping away decades of pleading law and for improperly exceeding its authority in essentially reconstructing the Rules Enabling Act. The REA sets forth the procedural rules that apply to all litigation in federal court, and can only be changed through congressional legislation.

However, another aspect of the Iqbal ruling that has received less attention is the case’s implications for government officials’ accountability for human rights abuses and war crimes. My recently published article in the University of Pennsylvania Journal of Law and Social Change addresses this issue, which is particularly relevant in the aftermath of the Supreme Court’s ruling in Kiobel v. Royal Dutch Petroleum (AFJ’s response to the Kiobel decision is here.)

In my article, I argue that the Supreme Court majority’s opinion maintaining that supervisory liability does not apply in lawsuits against federal government officials alleging violations of federal constitutional or statutory rights is inconsistent with the United States’ obligations under binding human rights law, and any contrary language in Iqbal cannot have any force in such cases. Because Iqbal’s language cannot apply as broadly as it appears, I conclude:

The Supreme Court has decided, in very limited circumstances, to bar particular claims against federal officials for largely procedural reasons, such as the failure to adequately plead or a failure to overcome the qualified immunity requirement of a clearly established federal right. These barriers would not exist in the context of a clear human rights violation, such as obvious torture or impermissible detention. The regime of quasi-absolute human rights immunity for high-level government officials is the product of lower federal courts crafting new law beyond what the Supreme Court or statutory law had previously recognized.

Alliance for Justice has long advocated that government officials who have violated our constitutional and human rights obligations must be held accountable for their actions. Our documentaries Quiet Revolution  and Tortured Law explore the ways in which conservatives reshaped our legal system to deny justice to victims of civil and human rights abuses.

The article, Ashcroft v. Iqbal and Binding International Law: Command Responsibility in the Context of War Crimes and Human Rights Abuses, is available in Volume 16 of the University of Pennsylvania Journal of Law and Social Change, 16 U. Pa. J.L. & Soc. Change 181.

New Study Shows Twombly/Iqbal Block Access to Justice

A new study shows that the heightened pleading standard established by the Supreme Court in Bell Atlantic v. Twombly (2007) and Ashcroft v. Iqbal (2009) is preventing ordinary Americans from having their day in court.

For fifty years, plaintiffs were required only to plead a “short plain statement” of facts, under Conley v. Gibson (1957), in order to reach the discovery stage of litigation. The ability to conduct discovery is a crucial component of access to justice, because defendants often possess the evidence that plaintiffs need to prove their cases.

In Twombly and Iqbal, the Roberts Court introduced a stricter “plausibility” standard, requiring a plaintiff to plead factual content from which a court can draw the reasonable inference that the defendant is liable for the misconduct alleged. If a plaintiff is not able to plead sufficient facts to convince the court to allow her claims to proceed, she will never be able to conduct the discovery that might have led to that factual information.

In the face of widespread criticism of the new pleading standard, defenders of the Court’s rulings have pointed to a study published by the Federal Judicial Center in March 2011 that reported no increase in the rate at which federal judges grantedg motions to dismiss without leave to amend in the wake of Iqbal and Twombley.

However, a new study by Jonah Gelbach, forthcoming in the Yale Law Journal, indicates that simply comparing dismissal rates pre- and post-Twombly and Iqbal does not reveal the true effects of those decisions.  Rather, Gelbach highlights that defendants are 50 percent more likely to file a motion to dismiss post-Twombly and Iqbal, presumably because they recognize that the heightened pleading standard increases their chances of getting the claims against them dismissed. Thus, even if the overall dismissal rate has not changed, a higher percentage of cases are being dismissed. Gelbach concludes that 20 percent more cases are dismissed before discovery can be conducted under Twombly/Iqbal than were dismissed under Conley.