Ashcroft v. Iqbal

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Oral argument: 
December 10, 2008

Oral argument: Dec. 10, 2008

Appealed from: United States Court of Appeals, Second Circuit (June 14, 2007)


In the wake of September 11, 2001, Javaid Iqbal, a Muslim Pakistani living in New York, was arrested on a variety of federal fraud and conspiracy charges and detained in a maximum security facility. He alleges that during that detention he was subjected to a variety of treatments and conditions that violated his constitutional rights. After pleading guilty and being deported to Pakistan, Iqbal filed a civil complaint in federal court, based largely on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, alleging twenty-one separate constitutional violations against a number of high-ranking federal officials, including former Attorney General John Ashcroft. In the district court, Ashcroft sought a motion to dismiss on the grounds that Iqbal’s claim did not contain sufficient factual allegations to overcome Ashcroft’s qualified immunity defense. The district court denied Ashcroft’s motion, and the circuit court affirmed. The Supreme Court granted certiorari to determine the proper pleading standards when a defendant in a Bivens action is a high-ranking government official.

· [Question(s) presented]

· [Issue(s)]

· [Facts]

· [Discussion]

· [Analysis]

Question presented

1. Whether a conclusory allegation that a cabinet-level officer or other high-ranking official knew of, condoned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subordinate officials is sufficient to state individual-capacity claims against those officials under Bivens.

2. Whether a cabinet-level officer or other high-ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials.



Are conclusory allegations against high-ranking officials sufficient to state individual claims against the officials under Bivens? If so, can high-ranking officials be held personally liable for unconstitutional acts of subordinate officials based on allegations that the high-ranking officers had constructive notice of the acts?



Federal Bureau of Investigation (“FBI”) and Immigration and Naturalization Services (“INS”) arrested Javaid Iqbal, a Muslim citizen of Pakistan, in New York City on November 2, 2001. Following his arrest, Iqbal was separated from the general prison population, and housed in a special detention center known as the Administrative Maximum Special Housing Unit (“ADMAX SHU”). While detained in the ADMAX SHU, Iqbal pled guilty to charges for conspiracy to defraud the United States and identification fraud. Iqbal was released from prison on January 15, 2003 and subsequently removed to Pakistan.

In May 2004, Iqbal filed a civil complaint in the United States District Court for the Eastern District of New York that is the subject of this interlocutory appeal. His complaint asserted twenty-one claims based on various federal statutes, as well as constitutional tort claims based on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The complaint named as defendants a number of federal officials at various levels of responsibility, including FBI agents, Federal Bureau of Prisons (“BOP”) employees, and high-ranking officials such as FBI Director Robert Mueller and former Attorney General John Ashcroft.

Iqbal’s complaint alleged that in the months after September 11, 2001, the FBI arrested and detained thousands of Arab Muslims in conjunction with their investigation, solely because these Arab Muslims were classified as “of high interest” to the FBI. “High interest” detainees were all housed in the ADMAX SHU, where, Iqbal alleges, he was subjected to a variety of unconstitutional treatments, including beatings, regular strip-searches, interference with religious activities, and interference with his right to counsel. These treatments, or, more generally, a policy encouraging these treatments, Iqbal asserts, was specifically approved of by Ashcroft and Mueller, and adhered to by lower-level supervisory officials in the FBI and BOP.

In the district court, Ashcroft and Mueller, as well as the FBI and BOP defendants, filed motions to dismiss the claims against them on a number of grounds, most relevantly that they were protected from suit by qualified immunity. The district court, while agreeing to carefully limit the first stage of discovery to the issue of whether or not Ashcroft and Mueller were personally involved in the alleged abuses, denied the motions, and Ashcroft and Mueller filed an interlocutory appeal.

In United States Court of Appeals for the Second Circuit, the parties disputed “the extent to which a plaintiff must plead specific facts to overcome a defense of qualified immunity at the motion-to-dismiss stage.” Interpreting Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) as requiring claims to be plausible on their face, as opposed to merely possible, but noting that nothing in Twombly required a heightened pleading standard, the Second Circuit held that Iqbal’s claim was sufficient to survive a 12(b)(6) motion to dismiss, affirmed the denial of the defendants’ motion, and remanded the case for further proceedings.

In issuing its opinion, the Second Circuit observed that in light of the availability of the qualified immunity defense, the district court could complete discovery against all the low-level public officials before commencing any discovery against the higher-level officials, thereby eliminating non-meritorious claims from the suit at the earliest possible stage. Furthermore, the Second Circuit ordered the district court to “provide ample opportunity for the defendants to seek summary judgment . . . .”

Ashcroft and Mueller then sought an interlocutory appeal to the Supreme Court through a writ of certiorari, which was granted on June 6, 2008. Because this is an interlocutory appeal, the six individual defendants in the district court, remain parties in this action. As a result of this appeal,Dennis Hasty, the former director of the Metropolitan Detention Center, and Michael Rolince and Kenneth Maxwell, both former FBI officials, are classified as “respondents in support of the petitioner.” Each of these additional respondents have filed merits briefs in support of the Ashcroft and Mueller.



In Ashcroft v. Iqbal, the United States Supreme Court has the opportunity to explore whether and to what extent constitutional claims against high-ranking government officials can, at the pleadings stage of litigation, survive the qualified immunity defense, which is designed to insulate government agents from individual liability.

Respondent Javaid Iqbal (“Iqbal”) argues at the outset that the Supreme Court has no interlocutory jurisdiction over either of the questions presented by Ashcroft and Mueller. Furthermore, Iqbal contends that his claim below is sufficient on its face and that no heightened pleading standard applies.

Petitioners John Ashcroft and Robert Mueller (“Ashcroft and Mueller”) contend that it was improper for the Second Circuit to affirm the district court’s denial of their 12(b)(6) motion because the facts of the complaint against them were insufficient to survive their qualified immunity defense. They further contend that even if the complaint was sufficient, high-ranking officials cannot be held liable under Bivenson a constructive-notice theory.

In determining whether or not Iqbal’s claim can stand, the Supreme Court will answer the Second Circuit’s request for guidance on the pleading requirements for claims subject to qualified immunity, and the implications of its decision could be vast. Because of the potentially broad-sweeping effects of this case, numerous amicus curiaebriefs have been filed.

According to a group of legal scholars specializing in civil procedure, this case presents an ideal opportunity for the Court to address the effect of Bell Atlantic v. Twombly, 127 S.Ct. 1955 (2007), on pleadings standards under Federal Rule of Civil Procedure 8(a)(2). The Professors argue that Twomblydid not announce or endorse any heightened or variable pleading standard, and that if the Court interprets Twombly to require a higher pleading standard, as Ashcroft and Mueller encourage them to do, it will exceed the scope of the Court’s rulemaking authority.

A group of five former Attorneys General, a former Director of the FBI, and a public interest law firm are concerned that without a heightened pleading requirement, there would be a dramatic expansion of claims against high-ranking officials. According to Barr et. al., if dismissal is not available to the defendants, high-ranking government officials will “face the prospect of discovery proceedings that are highly likely to distract them from their other responsibilities,” and this in turn, could prevent high-ranking officials from “carry[ing] out their missions effectively.” They argue that this could have broad implications for public safety, especially when national security interests, such as the effective investigation and prevention of terrorist attacks, hang in the balance.

Conversely, there is significant concern that requiring a heightened pleading standard for Bivens claims would quash meritorious claims, insulate high-ranking government officials from liability, and adversely affect a broad class of civil rights plaintiffs. A group of national civil rights organizations contends that Ashcroft and Mueller’s proposed heightened pleading standard would require plaintiffs to plead facts that they could not possibly know before the discovery phase, especially since supervisory officials who propose unconstitutional policies are likely to keep the details of their policies hidden from the public. The American Association for Justice echoes this argument, and stresses that requiring a claim to state facts sufficient to overcome potential defenses at the pleading stage “would threaten the entire federal system of notice pleading.”

Finally, this case raises concerns about civil rights claims made by minority groups during national security crises. Several groups dedicated to protecting the constitutional rights of racial, ethnic and religious minority groups in the United States point to the internment of Japanese-Americans during World War II, the situation of Guantanamo detainees and the negative backlash against Muslims after September 11, 2001. They argue that, because of this historic mistreatment of minority groups during times of national emergency, it is particularly important for the courts to take civil rights claims seriously and to favor claimants by allowing them to proceed to discovery.



Respondent Javaid Iqbal (“Iqbal”) claims that the Supreme Court does not have jurisdiction to hear the questions presented by petitioners John Ashcroft and Robert Mueller (“Ashcroft and Mueller”). Even if jurisdiction exists, he argues, his claim is sufficient to be heard because a heightened pleading standard is not applicable. In response, Petitioners Ashcroft and Mueller assert that the facts presented in Iqbal’s claim cannot overcome their qualified immunity defense, and even if the pleaded facts could overcome qualified immunity, they are not liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), on a constructive-notice theory because they are high-ranking officials.

Iqbal’s jurisdictional questions shape his arguments. Initially, Iqbal takes issue with whether there is proper jurisdiction for the Court to hear the second question presented: whether a high-ranking officer’s personal liability for unconstitutional acts of subordinate officials based on allegations that the high-ranking officers had constructive notice of the acts. Iqbal claims the Court lacks jurisdiction because Ashcroft and Mueller conceded the point by not raising it in the lower court. Therefore, Iqbal refuses to consider the question further.

Iqbal claims that the Supreme Court also lacks jurisdiction to hear the first question presented: whether conclusory allegations against high-ranking officials are sufficient to state individual claims against the officials under Bivens. He asserts that this is an interlocutory appeal, which, under 28 U.S.C. § 1291, is only permissible after a final decision. According to him, the district court’s denial of a motion to dismiss due to its determination that the complaint made sufficient allegations to satisfy Rule 8 of the Federal Rules of Civil Procedure (“Federal Rules”) does not qualify as a final decision because it is not “separable” from the merits of his claim.

Iqbal admits that Mitchell v. Forsyth allowed an interlocutory appeal for a denial of qualified immunity. Qualified immunity protects government officials from liability stemming from unconstitutional conduct so long as the conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” However, Iqbal argues Mitchell does not apply here because Ashcroft and Mueller are not asking for a review of their behavior in relation to the standard for qualified immunity, as was the case in Mitchell. Rather, Iqbal states that Ashcroft and Mueller’s interlocutory appeal is based on the complaint’s failure to state a claim, so they do not have the same right to an immediate interlocutory appeal as if the decision were based on the legal standard of qualified immunity. Iqbal claims that this interlocutory appeal is a tactic to get this matter before the Court, and he states that Ashcroft and Mueller“may not rely on a background allegation of qualified immunity to bootstrap jurisdiction over an otherwise unappealable decision.” Overall, Iqbal claims that because the lower court did not pass judgment on the merits with regard to the defense of qualified immunity, review of this question is premature and improper.

Ashcroft and Mueller do not address the jurisdiction issue. Instead, they focus on the affirmative defense of the qualified immunity doctrine and how Iqbal fails to present sufficient facts to overcome it. While Ashcroft and Mueller do not claim that the Federal Rules themselves require a heightened pleading standard, they do say that courts believe the Federal Rules should be firmly applied when qualified immunity is involved. Ashcroft and Mueller say an overly permissive pleading standard defeats the purpose of qualified immunity, because high-ranking public officials should not be hampered by frivolous lawsuits that could detrimentally affect how these officials make decisions, particularly during times of heightened national security. Ashcroft and Mueller strengthen this assertion by saying claims should “put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment.” They state that Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), raised the pleading standards from mere possibility to plausibility, requiring the complaint to be more factual than conclusory, and for the factual allegations to imply illegal conduct. Ashcroft and Mueller say that Iqbal’s complaint does not pass this test, as he only pleaded conclusory allegations.

In contrast, Iqbal says that Federal Rule 8 only requires a short and plain statement of the claim, showing the need and demand for relief, because the Federal Rules are designed so that cases are heard on the merits and not barred on a technicality. Iqbal then examines Federal Rule 9, and states that, while claims of fraud seem to require the heightened pleading standard of making a claim of “particularity,” courts have determined that Rule 9 only imposes a higher pleading standard when Congress explicitly authorizes one. Iqbal claims that neither courts nor Congress have interpreted or intended for Federal Rules 8 and 9 to require any specific pleadings that would require a case-by-case evaluation.

Iqbal argues that since no heightened pleading standard exists within the Federal Rules or case law, Ashcroft and Mueller must be asserting a new, heightened pleading standard that applies specifically when high-ranking officials, acting out of concerns for national security, invoke a defense of qualified immunity. Iqbal argues that although courts acknowledge that qualified immunity is important, needs to be disposed of at the earliest stage of the litigation possible, and is needed to protect officials from intrusive discovery, it does not mean that the courts should support an alteration to or heightening of the pleading requirements.

Finally, the parties argue over the scope of Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 338 (1971), and whether it pertains to the high-ranking officials at the heart of this case under a constructive notice theory. The Bivens decision created a private right of action for citizens to sue federal agents for civil remedies when they felt a federal actor had violated a constitutional right. Ashcroft and Mueller assert that while Bivens does make civil remedies available, the scope of this grant is extremely narrow. They state that Bivens does not condone liability under an employer-employee context or through other forms of vicarious liability, and liability only applies to an individual official and his wrongs. Ashcroft and Mueller say that Iqbal made only conclusory allegations against the highest ranking officials he named—allegations that may imply these officials had constructive knowledge, but certainly not actual knowledge of the acts. Ashcroft and Mueller say Bivens does not support this type of claim, which is rife with allegations but devoid of facts linking the officials to the actual acts committed.

In turn, Iqbal asserts that the pleadings meet the Bivens standard, which requires the supervisor to contribute to the constitutional violation in some way, such as by acknowledging a subordinate’s unconstitutional acts or implementing a facially unconstitutional plan. According to Iqbal, the pleadings give sufficient notice as to the nature of the claims, lay out two separate theories of supervisor liability, and give specific detail as to how the high-ranking officials are responsible. He therefore denies that the pleadings were just conclusory allegations and asserts that they were sufficient to overcome a motion to dismiss.



This case presents questions about the parameters of civil liability for high-profile figures. Ashcroft and Mueller assert that cases involving the affirmative defense of the qualified immunity of high-ranking officials are subject to, or should be subject to, a heightened pleading standard a plaintiff must meet to defeats this immunity. Iqbal counters that no Federal Rule of Civil Procedure or case precedent condones such a heightened pleading standard in any context, and any assertion to the contrary is incorrect. Iqbal asserts that this case is not about debating the necessity, purpose, or strength of the qualified immunity defense, but instead hinges on the issue of pleading standards, and whether certain circumstances do indeed call for heightened requirements. There are far-reaching implications for high-ranking officials, which will determine whether or not they can be held civilly liable for unconstitutional acts they or their subordinates commit. The potential chilling effect on these officials’ behavior, particularly during national security crises, must be weighed against the danger to the public if they are not held accountable for their actions.


Prepared by: Tom Kurland & Jennelle Menendez

Edited by: Allison Condon

Additional Sources

· Lectlaw: A Bivens Claim Defined

· Lectlaw: Federal Tort Claims Act

· “Personal Liability: The Qualified Immunity Defense,” by Daniel L. Schofield


Edited by