Unintended Precedents

Javaid Iqbal lived for a decade on Long Island, working first as a 7-Eleven clerk, then as a gas station attendant, then as a cable-television installer. On Nov. 2, 2001, the Pakistani immigrant was arrested in his apartment by FBI agents acting on one of the many misleading tips that poured in after the September 11 attacks. He was taken to Brooklyn's Metropolitan Detention Center without any notification to his American wife or stepchildren. Two months after his arrest, he was moved to the jail's Administrative Maximum (ADMAX) unit, where he alleges he was beaten repeatedly and kept in solitary confinement under bright lights that shone 24 hours a day. He was forced outside on cold, rainy days and then left soaking in his jail cell while guards cranked up the air conditioner. He lost 40 pounds during his 14 months in detention and was deported in 2003.

The following year, he filed a lawsuit against dozens of U.S. officials, claiming he was declared a "high interest" detainee and placed in ADMAX because of his race, religion, and national origin. Iqbal's lawyers sought to question former Attorney General John Ashcroft and FBI Director Robert Mueller under oath about their responsibility for the jailing and abuse of detainees in the Brooklyn detention center. But by a 5-4 vote last May, the Supreme Court's conservative majority rejected the request, quashing a lawsuit that had spent five years climbing through the lower courts. The justices ruled that Iqbal's lawyers had not made a plausible case that Ashcroft or Mueller was responsible for Iqbal's mistreatment and barred the lawyers from asking the government to turn over evidence to which only it had access. In doing so, the court used Ashcroft v. Iqbal to rewrite more than a half-century of precedent establishing the hurdles plaintiffs must cross before they can begin discovery -- the pre-trial process that requires defendants to hand over internal documents, answer questions under oath, and provide other evidence.

The opinion was so broad that it has become a formidable weapon for corporations and other defendants trying to shield themselves against everything from employment discrimination to product-liability lawsuits. Since the ruling, dozens of cases that might have once proceeded have been thrown out because they don't meet the Iqbal test.

"It has shifted from a situation where you used to be able to allege facts that you knew, but where you still had to gather the details through discovery," says Terry Collingsworth, a lawyer with Conrad and Scherer in Washington, D.C., and executive director of International Rights Advocates. "Now you pretty much have to have all the evidence before you even file a case. As a result, we are going to see many corporate-accountability cases that are simply not pursued." Collingsworth is leading a case brought by trade unionists in Colombia against Coca-Cola for allegedly conspiring with paramilitaries to imprison and kill union leaders trying to organize at the company's bottling plants there. An appeals court in Florida last year threw out the case for failing to surmount the Iqbal threshold; the unionists are planning to appeal.

In the five months after the decision, the Iqbal opinion was cited by lower-court judges in more than 2,600 cases. Supporters have hailed it as a long-overdue correction to an overly liberal standard that had forced corporations and other big defendants to spend millions of dollars digging up internal e-mails and other documents to meet discovery requests in meritless lawsuits. Detractors charge that it threatens to undermine the foundations of U.S. civil-rights and regulatory laws, which have relied on private civil litigation as their primary means of enforcement. Either way, less than a year after the ruling, Ashcroft v. Iqbal looks like one of the most radical and consequential decisions yet issued by the Supreme Court under Chief Justice John Roberts.

In many countries, governments play a more aggressive role in seeking out violations and enforcing statutes. But the United States has long depended on private citizens -- those actually harmed by racial discrimination or faulty products or dirty water -- to use the courts to enforce their rights and thereby enforce public laws. As Stephen Burbank of the University of Pennsylvania, a sharp critic of the Iqbal ruling, has put it: "Do Americans really want [government agencies] sufficiently well funded (through taxpayer dollars) and powerful to pick up the slack? Or is the real goal here, at the end of the day, no enforcement?"

And so the Iqbal ruling has touched off an epic battle over a right that has long been taken for granted in the United States -- that those fighting injustice will get their day in court.

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The story of how the war on terrorism and the war on lawsuit abuse came together can easily look like a brilliant conspiracy hatched by conservative jurists and their corporate backers. After all, over the past decade, two of the biggest projects for conservative groups have been to increase the power and discretion of the executive branch in national-security matters and to decrease the exposure of corporations to "frivolous" lawsuits. In the Iqbal ruling, the two goals were met in a way that seemed almost choreographed.

Dozens of detainees have told stories similar to Iqbal's, and the abuses were documented in a 2003 investigation by the Justice Department's inspector general into the arrests of nearly 800 men in the post?September 11 roundup. The inspector general's report concluded that Ashcroft had ordered a "hold until cleared" policy, which required the FBI to decide that those arrested were not involved in terrorism. That led to months -- and, in a handful of cases, even years -- of detention for Arab and Muslim men, most never charged with anything but immigration violations. Eighty-four were confined in the ADMAX unit in Brooklyn, where they suffered abuses of the sort that would later happen at Guantánamo Bay and Abu Ghraib. A United Nations working-group investigation called their treatment "impositions that could be described as torture."

When Iqbal, along with an Egyptian man, Ehab Elmaghraby, who had been detained at the same time, sued in 2004, a New York district court ordered Ashcroft, Mueller, and other top officials to testify under oath. The court said that even the extreme circumstances of the 9-11 attacks "do not warrant the elimination of remedies for the constitutional violations alleged here."

Following that ruling, the government paid $300,000 to settle with Elmaghraby, while Iqbal continued pursuing his claim, which was upheld on appeal in 2007. But last May, the Supreme Court tossed out the lower-court rulings. In his majority opinion, Justice Anthony Kennedy rejected the claim that Iqbal and others had been deemed "high interest" because of their race, religion, and national origin. The court preferred what it called an "obvious alternative explanation" that the innocent detainees were simply the unfortunate victims of legitimate security efforts. "All it plausibly suggests," the court wrote, "is that the Nation's top law enforcement officers, in the aftermath of a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activities." For a case to proceed, the court ruled, the plaintiff must provide enough factual evidence to persuade a judge that the defendant is plausibly liable for misconduct, which it said Iqbal failed to do. Determining such plausibility required judges to draw on their "judicial experience" and "common sense."

Critics immediately jumped on the opinion, comparing it to the court's infamous 1944 Korematsu ruling that upheld the incarceration of Japanese Americans during World War II. What proved surprising, however, was the decision's impact on cases that had nothing to do with national security or the war on terrorism.

For the past half-century, U.S. courts have generally agreed that only very weak lawsuits should be thrown out at the start -- an arcane bit of court procedure known as the pleading standard. Under rules of procedure dating back to the 1930s, plaintiffs are only required initially to make "a short and plain statement of the claim showing that the pleader is entitled to relief." In the seminal decision interpreting that rule, a 1957 case known as Conley v. Gibson in which black railroad employees sued their union for failing to protect them on the same basis as white workers, the Supreme Court declared that no complaint should be dismissed at the outset unless the plaintiff "can prove no set of facts in support of his claim which would entitle him to relief."

The idea behind such a liberal pleading standard was to ensure that meritorious cases were not quashed simply because the plaintiff did not have access to evidence that was solely in the hands of the defendants. In employment-discrimination cases, for instance, it is often possible to show a pattern of discrimination in hiring or firing from publicly available evidence but almost impossible to prove discrimination conclusively without access to testimony and records from executives who did the hiring or firing.

Over the years, however, companies facing such lawsuits argued that the standard, together with the expansion in federal laws protecting civil rights, liberalized rules for class-action suits, and the higher discovery costs for electronic records had overwhelmed the capacity of defendants to respond. The depository of electronic records in lawsuits against the energy giant Enron, for instance, totaled more than 20 million documents.

Over the past decade, there had been partially successful efforts to shield companies against the rising costs of discovery. The Chamber of Commerce had poured millions of dollars into elections for judges, hoping to tip state courts. The chamber also lobbied heavily to persuade Congress to pass the Class Action Fairness Act of 2005, which moved certain lawsuits from state courts to federal courts that are generally more sympathetic to defendants. And over his eight years in office, George W. Bush placed more conservative judges on the federal district and appeals courts. Those measures had a noticeable effect, most particularly in discouraging employment--discrimination cases.

For all their interest in the costs of discovery, however, corporations and their lawyers didn't appear to have the slightest inkling that the Iqbal case would so radically change the pleading standard. The court had hinted at such a change in a 2007 case called Bell Atlantic Corp v. Twombly, but that decision seemed to apply to only big antitrust cases, not ordinary lawsuits. The only amicus brief in favor of overturning the lower-court rulings in Iqbal came from five former attorneys general, who were worried about the erosion of immunity for senior government officials. Indeed, legal scholars will long debate whether the Roberts court seized on the Iqbal case to change the pleading standard or whether it changed the pleading standard incidentally, in its eagerness to throw out the Iqbal case and protect senior national-security officials from questioning.

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Whatever the court's motivation, the opinion's effects were immediately apparent. Ask Andrew Speaker. Speaker was the Atlanta lawyer who became a national pariah in 2007 when he hopped an airplane from a wedding ceremony in Europe to return to the United States via Canada, even though he was infected with what the federal government claimed was a contagious and dangerously drug-resistant form of tuberculosis. His name was leaked to the press, and the story caused outrage in Congress because he was not stopped by U.S. border officials when he rented a car and drove back from Montreal. The only problem with Congress' reaction was that much of the story was not true. It was later revealed that Speaker had not been contagious and that his infection was less serious than the government had claimed.

Once his name was public, however, the facts did not much matter. He received hate mail and death threats. His marriage fell apart, and his law practice withered because his reputation made it almost impossible to attract new clients. So last year he decided to sue the Centers for Disease Control and Prevention, alleging the government agency had violated his medical privacy by disclosing his name and medical history. All he knew for sure was that the CDC held press conferences in May 2007 disclosing details of his life -- without divulging his name -- and then almost immediately afterward television crews arrived outside the hospital in New York where he was being treated. The next day he was named in an Associated Press story citing an anonymous law-enforcement official and an anonymous "medical official in Atlanta," where the CDC is headquartered. His lawsuit sought discovery to determine if the CDC had violated privacy laws by releasing his name and medical history.

But the case could not clear the Iqbal hurdle. The CDC argued that unless Speaker could identify the anonymous individual who had leaked his name, the Iqbal ruling prevented him from seeking discovery. "To hold otherwise would allow a plaintiff to engage in a fishing expedition at great cost to the defendant," the CDC claimed. Speaker's lawyer argued that it was reasonable to suspect that the CDC had leaked his name but impossible to know for sure without discovery that would allow questioning of officials and the examination of records. The district court disagreed and threw out the case. Speaker is appealing.

The decision is one of many following a similar pattern. In Puerto Rico, 14 maintenance and domestic employees at the governor's mansion were fired following the January 2009 election of Gov. Luis Fortuño-Burset. The workers sued, claiming they were dismissed because of their political affiliations, but the judge ruled they had failed to present plausible evidence demonstrating that case. Of course, without being able to question those who carried out the firings and gather other evidence contained in internal government communications, it was impossible to know for sure.

The judge extraordinarily described his own ruling as "draconianly harsh, to say the least," but said it was "mandated by the recent Iqbal decision." He added: "As evidenced by this opinion, even highly experienced counsel will henceforth find it extremely difficult, if not impossible, to plead a ... political discrimination suit without 'smoking gun' evidence."

The Iqbal opinion has also been cited in dismissals in antitrust and civil-rights cases, as well as in a number of product-liability lawsuits. One forthcoming study of more than 1,000 lower-court decisions found that dismissal motions had succeeded 56 percent of the time under the new Iqbal standard, compared with 46 percent under the old Conley standard.

Iqbal has also become the template for terrorism cases that involve claims of discrimination. Maher Arar, a Syrian Canadian, was awarded $10 million by the Canadian government for its small role in a Bush administration decision to render him to Syria, where he was tortured. In the U.S., however, Arar recently had his lawsuit rejected by an appeals court, largely on Iqbal grounds. A California court last year rejected a case filed by Rahinah Ibrahim, a doctoral student at Stanford who says she was mistakenly placed on the "no fly" list and handcuffed at San Francisco International airport. The judge noted that "a good argument can be made that the Iqbal standard is too demanding. Victims of discrimination and profiling will often not have specific facts to plead without the benefit of discovery. District judges, however, must follow the law as laid down by the Supreme Court."

Sen. Arlen Specter has introduced a bill to overturn Iqbal, and several hearings have been held. But Specter is not the ideal champion, due to his recent conversion to the Democratic Party and the nearly $6 million he has taken in campaign contributions from lawyers over the past two decades, most of it from trial lawyers. And in December, a who's who of corporate America -- -including Caterpillar, General Electric, Exxon-Mobil, Dow Chemical, and Pfizer -- penned a letter to the Senate Judiciary Committee promising a fight over the legislation.

If Congress does not pass legislation, the alternatives are not very appealing. Alex Reinert, a law professor at the Cardozo School of Law who argued for Javaid Iqbal before the Supreme Court, now chairs the Iqbal Project launched by Public Justice, a lawyers' group that helps plaintiffs in civil-rights, consumer, employment, environmental, and public-health and safety cases. Its goal is to persuade judges that the Iqbal decision did not in fact overturn the traditional pleading standard. In particular, says Reinert, the lower courts should not be reading Iqbal to require that a plaintiff's claim of discrimination or other wrongful harm is "more likely" than alternative, innocent explanations. "I don't know how any plaintiff could overcome that," he says. "That's where a lot of damage could be done."

For Javaid Iqbal, however, the damage cannot be undone. After the Supreme Court decision, he quietly dropped his lawsuit and accepted a settlement payment from the government, the amount of which has not been disclosed. The lawyer in Andrew Speaker's case, Craig Jones, argues that cases such as these deserve to be heard by a jury. "The judge can't decide these sorts of questions," Jones says. "Only the jury can decide."

In the wake of Iqbal, that's just not true anymore.

Additional research for this piece was conducted by Katherine J. Pynoos.

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