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Ashcroft v. Iqbal and the Law of Unintended Consequences.

Posted By Cliff Tuttle | July 21, 2009

Posted by Cliff Tuttle (c) 2009

When the United States Supreme Court announced a decision in Ashcroft v. Iqbal on May 18, 2009, the case seemed to attract only modest interest. However, according to the New York Times, a large number of defense counsel in federal civil suits must have been paying close attention. Iqbal has been cited over 500 times by federal courts and is causing motions to dismiss federal civil cases at the complaint stage to be granted in a broad range of cases at an unusual rate.

This case involved a Bivens claim by a Pakistani Muslim who was detained in New York City as part of the investigation of the 9/11 attacks. He was ultimately convicted on charges related to fraudulent identification documents and deported. The complaint asserted that the Attorney General, the Director of the FBI and all of the government officials in the chain of command that ended with the guards in the maximum security facility that housed the plaintiff had discriminated against him and numerous other Muslims in America on the basis of race, religion and national origin by arresting and detaining them and subjecting them to harsh conditions and cruel treatment.

The majority opinion in the 5-4 decision, written by the ubiquitous Justice Kennedy, held that a complaint must contain sufficient facts to form a plausible cause of action and that a judge may utilize common sense to determine if this is the case. Moreover broad legal conclusions, with no factual support in the pleading, may not afford sufficient basis for sustaining the cause of action.

The crux of the matter is that under generally accepted pleading practice under Rule 8 of the Federal Rules of Civil Procedure, broad allegations with little factual detail were sufficient to get to discovery, so long as they stated a cause of action. However, the United States government does not wish to be subjected to civil discovery procedures in cases involving terrorism and national security and judges are generally sympathetic to that concern.

However, the holding in Iqbal was not limited to such circumstances and it is now being applied by federal courts in a wide range of cases. The majority does provide some guidelines for pleading in its analysis of the Iqbal complaint. Perhaps most plaintiffs can overcome an Iqbal challenge by beefing up their pleadings. Meanwhile, life under Iqbal will certainly be the subject of many blog posts, articles, seminars and midnight colloquies.

It is too early to speculate exactly how the Supreme Court will return to this issue, but it seems a good bet that it must. Cases are surging through the courts and the Circuits will be collecting them and probably “splitting” in the process. The Supreme Court will eventually be called upon for guidance and it will be a somewhat different Supreme Court.

Justice Ginsberg was quoted the the Times article as saying that the Iqbal decision has “messed up” federal civil practice. She has a point. This appears to be an application of the Law of Unintended Consequences.

As economist/blogger Alex Tabarrok defined it: “The law of unintended consequences is what happens when a simple system tries to regulate a complex system.” Look for some really interesting cases to pop up under Iqbal.



CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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