First korematsu and now ashcroft v. Iqbal: The latest chapter in the wartime supreme court's disregard for claims of discrimination

Buffalo Law Review

Volumn 58, Issue 2, 2010, Pages 419-506

  Sidhu, Dawinder S ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77953421664     PISSN: 00239356     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (558)

1. Robert H. Jackson, Wartime Security and Liberty Under Law, 1 Buff. L. Rev. 103, 104 (1951). Justice Jackson authored one of the three dissents in Korematsu. Korematsu v. United States, 323 U.S. 214, 242-48 (1944) (Jackson, J., dissenting).
2. This may be saId of Congress, see, e.g., Abner J. Mikva, How Well Does Congress Support and Defend the Constitution?, 61 N.C. L. Rev. 587, 609 (1983) ("[M]ost Supreme Court opinions never come to the attention of Congress.");
3. Abner J. Mikva, Reading and Writing Statutes, 48 U. Pitt. L. Rev. 627, 630 (1987) ("Members of Congress do not even closely follow cases directly involving or interpreting statutes that they have sponsored or in which they have an interest.")
4. and of the public, see, e.g., Jason J. Czarnezki & William K. Ford, The Phantom Philosophy? An Empirical Investigation of Legal Interpretation, 65 Md. L. Rev. 841, 866 n.106 (2006);
5. Michael Richard Dimino, Sr., Counter- Majoritarian Power and Judges' Political Speech, 58 Fla. L. Rev. 53, 95 (2006) ("[M]ost members of the public are unaware of the existence of laws whose constitutionality is at issue in Supreme Court cases. Fewer still care very much about whether a particular law survives judicial review.").
6. See R. George Wright, The Distracting Debate over Judicial Review, 39 U. Mem. L. Rev. 47, 65 n.94 (2008) (enumerating Supreme Court cases that are in general viewed favorably and, therefore, would support the concept of judicial review, including Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), Loving v. Virginia, 388 U.S. 1 (1967), and Brown v. Board of Education, 347 U.S. 483 (1954)).
7. See Id. at 67 n.95 (enumerating cases of "an opposite political valence," including Korematsu, 323 U.S. 214 (1944), Plessy v. Ferguson, 163 U.S. 537 (1896), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)).
8. See Model Code of Prof'l Responsibility EC 8-11 (1980) ("Changes in human affairs and imperfections in human institutions make necessary constant efforts to maintain and improve our legal system.");
9. Robert M. Palumbos, Within Each Lawyer's Conscience a Touchstone: Law, Morality, and Attorney Civil Disobedience, 153 U. Pa. L. Rev. 1057 (2005) (noting that the American Bar Association Model Code of Professional Responsibility "impose [s] on lawyers a duty to improve the law by seeking to make it more just").
10. See, e.g., Korematsu, 323 U.S. at 246 (Jackson, J., dissenting).
11. See Memorandum from Akin Gump Strauss Hauer & Feld LLP and SCOTUSblog.com on End of Term Statistical Analysis - October Term 2008 (June 30, 2009), available at http://www.scotusblog.com/wp/wp-content/uploads/2009/07/ summary-memo-final.pdf.
12. See, e.g., Justice Stephen G. Breyer, Address at Aspen Institute of Ideas (July 4, 2009) (commenting disappointingly, after the close of the 2008 October Term, that most of the Court's decisions were not reported or discussed).
13. Pleasant Grove City, Utah v. Summum, 129 S. Ct. 1125 (2009).
14. Wyeth v. Levine, 129 S. Ct. 1187 (2009);
15. Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008).
16. DavId C. Frederick & Pamela Harris, Remarks, "Sizing Up the 2008-2009 Supreme Court Term: A Practitioner's View," (July 6, 2009), transcript available at http://www.c-spanvIdeo.org/program/287449-1.
17. Analysis: New Obstacles to Wartime Challenges, http://www.scotusblogcom/ wp/analysis-new-obstacles-to-wartime-challenges/ (July 4, 2009, 16:09 EST).
18. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009)
19. Iqbal v. Hasty, 490 F.3d 143,155 (2d Cir. 2007);
20. Elmaghraby v. Ashcroft, 2005 WL 2375202 (E.D.N.Y. Sept. 27, 2005).
21. The initial complaint was filed on May 3, 2004. Initial Complaint at 44, Elmaghraby v. Ashcroft, 2004 WL 3756439 (E.D.N.Y. May 3, 2004) (No.04- 1809). The September 30, 2004 date corresponds with the amended complaint. Amended Complaint, Elmaghraby v. Ashcroft, 2004 WL 3756442 (E.D.N.Y. Sept. 30, 2004) (No. 04-1809) [hereinafter Complaint]. As this is the operative complaint for purposes of this Article, references to the "complaint" will signify the later filing.
22. See Complaint, supra note 14,48-49, 232-235.
23. The remaining defendants are: Michael Rolince, Former Chief of the FBI's International Terrorism Operations Section, Counterterrorism Division; Kenneth Maxwell, Former Assistant Special Agent in Charge, New York Field Office, FBI; Kathleen Hawk Sawyer, former Director of the Bureau of Prisons (BOP); DavId Rardin, Former Director of the Northeast Region of the BOP; Michael Cooksey, Former Assistant Director for Correctional Programs of the BOP; former and current Wardens of the Metropolitan Detention Center ("MDC"); and certain MDC officers and personnel. Id. ¶¶ 10-44.
24. See Petition for Writ of Certiorari, Ashcroft v. Iqbal, 2008 WL 336225, at *I (Feb. 6, 2008) (No.07-1015) (questions presented);
25. Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (granting certiorari).
26. See Iqbal, 129 S. Ct. at 1937.
27. It is perhaps the ruling's procedural contents that help explain why the press took little relative notice of Iqbal: procedural rulings generally are not of interest to the public and it is difficult, as a result, to convince the public that a technical conclusion by the Court warrants its attention. As will be explained in this Article, those procedural miscues are significant to civil litigants and, in any case, there are other elements of the case that are sufficiently troublesome to justify the use of press accounts and other media devices to inform the public about Iqbal.
28. 3 U.S. 214 (1944).
29. See, e.g., Tooley v. Napolitano, 556 F.3d 836 (D.C. Cir. 2009), vacated, 586 F.3d 1006 (granting rehearing in light of Iqbal);
30. Bayer v. Monroe County Children & Youth Serv., 577 F.3d 186, 191 n.5 (3d Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949) ("In light of the Supreme Court's recent decision in Ashcroft v. Iqbal, it is uncertain whether proof of such personal knowledge, with nothing more, would provIde a sufficient basis for holding [a certain public employee] liable with respect to plaintiffs' Fourteenth Amendment claims under § 1983.") (internal citation omitted).
31. As of this writing, a Westlaw search uncovered no legal journals with any articles dedicated to comprehensively discussing the procedural and substantive import of Iqbal.
32. A Westlaw search conducted on February 20, 2010, containing the Supreme Court reporter citation to Iqbal, yielded 5639 hits in the federal case database. The Seventh Circuit observed that Twombly was "becoming the citation du jour in Rule 12(b)(6) cases," Smith v. Duffey, 576 F.3d 336, 339-40 (7th Cir. 2009) (Posner, J.), however, Iqbal may now supplant Twombly as the preferred citation in a recounting of the Rule 12(b)(6) legal standard.
33. Panther Partners Inc. v. Ikanos Commc'ns, Inc., No. 08-3398-cv, slip op. at *4 (2d Cir. Sept. 17, 2009);
34. see also Courie v. Alcoa Wheel & Forged Prod., 577 F.3d 625, 630 (6th Cir. 2009) (commenting on the pleading standard as articulated in Iqbal, "[e]xactly how implausible is 'implausible' remains to be seen, as such a malleable standard will have to be worked out in practice").
35. See, e.g., Segal v. Fifth Third Bank, N.A., 581 F.3d 305, 308 (6th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949) (contending that "all allegations" in the complaint as true for purposes of a motion to dismiss); Shomo v. City of N.Y., 579 F.3d 176, 183, (2d Cir. 2009) (same);
36. Avon Pension Fund v. GlaxoSmithKline PLC, No. 08-4363-cv, 2009 WL 2591173, at *1 (2d Cir. Aug. 24, 2009) (citing Iqbal, 129 S. Ct. at 1949-50) (noting that an appeal of a dismissal of a complaint pursuant to Rule 12(b)(6) is reviewed "accepting all allegations in the complaint as true");
37. O'Neil v. Simplicity, Inc., 574 F.3d 501, 503 (8th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949-50) (same); Chambers v. U.S. Dep't of Interior, 568 F.3d 998, 1006 (D.C. Cir. 2009) (citing Iqbal, 129 S.Ct. at 1949).
38. However, Iqbal does not state that "all allegations" must be credited as true and instead holds that allegations may be accepted as true only under certain, prescribed conditions. See, e.g., McKeeman v. United States, No. 09-194C., 2009 WL 2905742, at *1 (Fed. CI. Sept. 9, 2009) (citing Iqbal, 129 S. Ct. at 1949) ("[A court is not] required to give credence to implausible allegations.");
39. Brooks v. Citibank (South Dakota), N.A., No.08-35574, 2009 WL 2870046, at *1 (9th Cir. Sept. 8, 2009) (quoting Iqbal, 129 S. Ct. at 1949) (holding that assertions that were "nothing more than a '[t]hreadbare recital[ ] of the elements of a cause of action, supported by [a] mere conclusory statement ]'.. was . properly rejected by the district court" (alterations in original)).
40. Compare Carpenter v. Ashby, No.08-4021, slip. op. at 2 (3d Cir. Sept. 10, 2009) (citing Iqbal, 129 S. Ct. at 1949) (stating, without qualification, that "[w]e accept as true all factual allegations in the complaint");
41. Banks vs. Court of Common Pleas FJD, No.09-1145, slip op. at 1 (3d. Cir. Aug. 17, 2009) (accepting, without qualification, all factual allegations as true in reviewing a motion to dismiss under Rule 12(b)(6) and citing Iqbal, 129 S. Ct. at 1949);
42. Shelley v. Wilson, No.09-1193, slip op. at 1 (3d Cir. Aug. 3, 2009) (citing Iqbal, 129 S. Ct. at 1949-50) (same), with Miles v. Township of Barnegat, No. 08-1387, slip op. at 2 (3d Cir. Sept. 4, 2009) ("The assumption of truth does not apply, however, to legal conclusions couched as factual allegations or to '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements. "') (quoting Iqbal, 129 S. Ct. at 1949) (alterations in original);
43. McTernan v. City of York, Pa., 577 F.3d 521, 533 (3d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949) ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.") (alterations in original).
44. See, e.g., McTernan, 577 F.3d at 533; Shahin v. Del. Dep't of Finance, No.09-1656, slip op. at 1 (3d Cir. Sept. 14, 2009) (per curiam);
45. Richardson v. Sherrer, No.09-1966, slip op. at 1 (3d Cir. Sept. 11, 2009) (per curiam).
46. See U.S. CONST, art. VI, cl. 2 (This Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land.");
47. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ('It is emphatically the province and duty of the judicial department to say what the law is.").
48. See An Act to Implement Recommendations on Wartime Relocation and Internment of Civilians, 50 U.S.C. § 1989a (2006) (apologizing for internment of indivIduals of Japanese ancestry);
49. Korematsu v. United States, 584 F. Supp. 1406, 1409 (N.D. Cal. 1984) (vacating Korematsu's conviction for "being in a place from which all persons of Japanese ancestry were excluded pursuant to Civilian Exclusion Order No. 34").
50. Indeed, federal courts are already citing to Iqbal for decisions condoning profiling and dismissing resulting claims of discrimination. See, e.g., Monroe v. City of Charlottesville, Va., 579 F.3d 380, 389 (4th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1951) (affirming dismissal of African-American plaintiffs equal protection cause of action because the local police's search for a serial rapist, where random African-American men were approached for DNA samples, merely had an "incIdental" impact on African-American men in the area), cert, denied, 78 U.S.L.W. 3418 (Mar. 8, 2010);
51. see Id. at 390 ("Even though thousands of Arab-Muslim men were investigated in [sic] Iqbal, the Supreme Court deemed this insufficient to render a legitimate investigatory process unconstitutional.");
52. see also Brown v. JP Morgan Chase Bank, 334 F. App'x 758, 759 (7th Cir. 2009) (affirming the dismissal of a discrimination suit brought under 42 U.S.C. § 1985(3), relying in large part on Iqbal in doing so);
53. Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672 (D.C. Cir. 2009) (same);
54. Lopez v. Beard, 333 F. App'x 685 (3d Cir. 2009) (affirming the dismissal of a discrimination suit brought under 42 U.S.C. § 12132, relying in large part on Iqbal in doing so);
55. Maldonado v. Fontanes, 568 F.3d 263 (1st Cir. 2009) (dismissing Fourteenth Amendment substantive due process claims, relying in large part on Iqbal in doing so).
56. See The Pluralism Project: Discrimination and National Security Initiative, http://www.dnsi.org (last visited Jan. 20, 2010).
57. See, e.g., Neha Singh Gohil & Da winder S. SIdhu, The Sikh Turban: Post- 911 Challenges to this Article of Faith, rutgers J.L. & religion, Spring 2008, at i;
58. Dawinder S. SIdhu, The Chilling Effect of Government Surveillance Programs on the Use of the Internet by Muslim-Americans, 7 U. Md. L.J. Race, Religion, Gender & Class 375 (2007);
59. June Han, Discrimination & Nat'l Sec. Initiative, We are Americans Too: A Comparative Study of the Effects of 9/11 on South Asian Communities, Discrimination and National Security Initiative (2004).
60. Dawinder S. SIdhu & Neha Singh Gohil, Civil Rights in Wartime: The Post-9/11 Sikh Experience (2009).
61. See Hamdi v. Rumsfeld, 542 U.S. 507, 511 (2004) ("On September 11, 2001, the al Qaeda terrorist network used hijacked commercial airliners to attack prominent targets in the United States. Approximately 3,000 people were killed in those attacks.").
62. See Complaint, supra note 14, 1, 80.
63. See Elmaghraby v. Ashcroft, No. 04-CV-01809, 2005 WL 2375202, at *1 n.l (E.D.N.Y. Sept. 27, 2005).
64. See Id.
65. See Complaint, supra note 14, ¶81.
66. See Id. ¶¶51, 54, 81.
67. See Id. ¶¶9, 80, 81.
68. See Id. ¶9.
69. See Office of the Inspector Gen., U.S. Dep't of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks (2003) [hereinafter OIG report], available at http://www.justice.gov/oig/8pecial/0306/ press.pdf.
70. Id. at 20-21.
71. See Id. at 69.
72. See Id. at 158.
73. Id. The OIG released a supplementary report in December of 2003. See Office of the Inspector Gen., U.S. Dep't of Justice, Supplemental Report on September 11 Detainees' Allegations of Abuse at the Metropolitan Detention Center in Brooklyn, New York (2003) [hereinafter Supp. OIG Report], available at http://www.justice.gov/oig/special/0312/final.pdf. This report was discussed only in a footnote of the district court's opinion, specifically in regards to the arbitrary nature of the MDC's strip search policy. See Elmaghraby v. Ashcroft, No. 04-CV-01809, 2005 WL 2375202, at *27 n.25. 47.
74. The initial complaint was filed on May 3, 2004. The September 30, 2004 date refers to the amended complaint.
75. Iqbal filed suit with Ehad Elmaghraby, a Muslim male. See Complaint, supra note 14, H 8-9. The United States settled Elmaghraby's claims for $300,000. See Iqbal v. Hasty, 490 F.3d 142, 147 (2d Cir. 2007). Therefore, Respondent Iqbal remains the only plaintiff in this action.
76. See supra note 16.
77. See Complaint, supra note 14, ¶¶1-2.
78. See Id. ¶¶ 3, 51, 52, 96.
79. Id. ¶¶ 60, 63.
80. Id. ¶ 82.
81. Id. ¶ 84.
82. Id. ¶ 85.
83. Id. ¶ 87.
84. Id. ¶ 88.
85. Id. ¶ 89.
86. See Id. ¶¶ 201-270.
87. U.S. Const, amend. I.
88. U.S. Const, amend. V.
89. See Complaint, supra note 14, ¶¶ 204-06, 231-236
90. 403 U.S. 388 (1971).
91. Id. at 389 ("[Violation of [a constitutional command, in this case the Fourth Amendment's probation against unreasonable searches and seizures] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct."). Bivens is thus known as the federal complement to suits brought under 42 U.S.C. § 1983, which enables persons to sue state actors for constitutional violations. See, e.g., Hartman v. Moore, 547 U.S. 250, 254 n.2 ("[A] Bivens action is the federal analog to suits brought against state officials under.. 42 U.S.C. § 1983.").
92. Brief for Respondent JavaId Iqbal at 47, 129 S. Ct. 1937 (2009) (No.07-1015) [hereinafter Response Brief] (citing Complaint, supra note 14, ¶ 10) (internal quotes omitted).
93. Id. (citing Complaint, supra note 14, ¶ 11) (internal quotes omitted).
94. Id. (citing Complaint, supra note 14, ¶ 47) (footnote omitted).
95. Id. at 48 (citing Complaint, supra note 14, 48, 49) (internal quotes omitted).
96. Id. (citing Complaint, supra note 14,¶ 69) (internal quotes omitted).
97. Id. (citing Complaint, supra note 14, ¶ 96) (internal quotes omitted).
98. Id. (citing Complaint, supra note 14,¶ 97) (internal quotes omitted).
99. Id. (citing Complaint, supra note 14, ¶¶ 232, 235, 247, 250) (internal quotes omitted).
100. See Reply Brief for Petitioners at 9, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (No.07-1015), 2008 WL 5009266 [hereinafter Reply Brief] (summarizing the ultimate question whether dismissal is appropriate "under Rule 12(b)(6) based on failure to meet the pleading standards of Rule 8(a)(2) in light of a qualified-immunity defense asserted in a motion to dismiss").
101. Fed. R. Civ. P. 12(b)(6).
102. Fed. R. Civ. P. 8(a)(2).
103. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
104. Samuel P. Tepperman-Gelfant, Note, Constitutional Conscience, Constitutional Capacity: The Role of Local Governments in Protecting IndivIdual Rights, 41 harv. C.R.-C.L. L. rev. 219, 235 (2006);
105. see Id. at 235-36 (quoting Pierson v. Ray, 386 U.S. 547, 555 (1967) ("A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does.")).
106. See Elmaghraby v. Ashcroft, No. 04-CV-01809, 2005 WL 2375202, at *9 (E.D.N.Y. Sept. 27, 2005).
107. See Id. at *35.
108. Id. at *14;
109. see Id. at *18 ("[T]he proposition that, as a matter of law, constitutional and statutory rights must be suspended during times of crisis, is supported neither by statute nor the Constitution.").
110. Id. at *14.
111. Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)).
112. Id. at *20.
113. Id. at *20 n.20 (citing OIG REPORT, supra note 42, at 37-38, 39, 42, 49, 60 112-13,116).
114. See Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) ("Ashcroft, Mueller, and FBI Defendant Rolince seek review of the denial of their motion to dismiss for lack of personal jurisdiction, arguing that the issue of personal jurisdiction is available for review on this interlocutory appeal because the issue is inextricably intertwined with that of qualified immunity.").
115. 550 U.S. 544 (2007).
116. U.S.C. § 1 (2006).
117. Twombly, 550 U.S. at 561 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
118. Id. at 556.
119. Id. at 570.
120. See, e.g., al-KIdd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) ("Post- Twombly, courts face greater uncertainty in evaluating complaints.");
121. Moss v. U.S. Secret Serv., 572 F.3d 962, 967 (9th Cir. 2009) ("Much confusion accompanied the lower courts' initial engagement with Twombly?) (comparing Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 n.5 (9th Cir. 2008), and ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008), with Aktieselskabet AF 21. November 2001 v. Fame Jeans, 525 F.3d 8,15 & n.3 (D.C. Cir. 2008));
122. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("The issues raised by Twombly are not easily resolved, and likely will be a source of controversy for years to come.");
123. see also Paul Stancil, Balancing thePleading Equation, 61 baylor L. Rev. 90,113 (2009) ("Almost immediately after it was handed down, lower courts and scholars began struggling to Identify the true reach and meaning of the Twombly opinion.");
124. Michael C. Dorf, The Supreme Court Wreaks Havoc in the Lower Federal Courts-Again, FindLaw'S Writ, Aug. 13, 2007, http://writ.news.fmdlaw.com/dorf/ 20070813.html ("How should Twombly be understood? That question has perplexed the hundreds of federal judges who have already had to confront dismissal motions citing Twombly.").
125. Iqbal v. Hasty, 490 F.3d 143, 157-158 (2d Cir. 2007).
126. See Id. at 152.
127. See Id. at 177-178
128. Id. at 151.
129. Id. at 159.
130. Id. at 160.
131. Id. at 166.
132. Id. at 175-176
133. Id. at 159.
134. Id. at 175-176 (emphasis added).
135. Id. at 179.
136. Michael Cooksey, former Assistant Director for Correctional Programs of the Bureau of Prisons, DavId Rardin, former Director of the Northeast Region of the Bureau of Prisons, Michael Rolince, former Chief of the Federal Bureau of Investigation's International Terrorism Operations Section, Counterrorism Division, Kathleen Hawk Sawyer, former Director of the Federal Bureau of Prisons, Kenneth Maxwell, former Assistant Special Agent in Charge, New York Field Office, Federal Bureau of Investigation, and Dennis Hasty, former Warden of the MDC. See Petition for Writ of Certiorari at II, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (No.07-1015).
137. Id.
138. Id. at 12 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)) (alteration in original).
139. See Id. at 14 (quoting Twombly, at 555).
140. Id. at 10-11.
141. Id. at 15 (quoting Complaint, supra note 14, at ¶ 96).
142. See Id. at 13.
143. See Id.
144. Id. at 14.
145. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
146. Id.
147. Id. at 15.
148. Id. at 10.
149. Brief in Opposition, Ashcroft v Iqbal, 128 S. Ct. 2931 (2008) (No.07-1015), 2008 WL 2095715.
150. Id. at 11.
151. Id. at 12.
152. Id.
153. Reply Brief for the Petitioners at 7, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No.07-1015), 2008 WL 2277915.
154. Id. (internal quotes and alteration omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).
155. Id. at 2 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)).
156. Id. at 4 (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
157. Brief of William P. Barr et al. as Amici Curiae in Support of Petitioners, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No.07-1015), 2008 WL 659528.
158. See Id. at 7-8 ("[T]he decision below calls into question the ability of high- level Executive Branch officials to win dismissal, on qualified immunity grounds, of even frivolous Bivens litigation filed by anyone claiming to be aggrieved by their official conduct. In the absence of dismissal, those officials face the prospect of discovery proceedings that are highly likely to distract them from their other responsibilities.").
159. Id. at 8.
160. Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008).
161. Petition for a Writ of Certiorari, supra note 17, at I. The Court also agreed to hear a question concerning constructive notice. Id. ("Whether a cabinet-level officer or other high-ranking official may be held personally liablefor the allegedly unconstitutional acts of subordinate officials on the groundthat, as high-level supervisors, they had constructive notice of the discrimination allegedly carried out by such subordinate officials."). As thisquestion was disavowed by Iqbal as a matter of dispute at the Supreme Courtlevel, see Response Brief, supra note 65, at 1 (acknowledging that the questionof supervisory liability or respondeat superior based on a constructiveknowledge theory "is not even implicated by respondent's allegations againstpetitioners"), I will not address it.
162. Brief for the Petitioners, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No.07- 1015), 2008 WL 4063957 [hereinafter Opening Brief].
163. Id. at 12 (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).
164. See Id. at 28.
165. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546 (2007)).
166. Id. at 39 ("Respondent does not allege the what of liability (i.e., any particular steps that the Attorney General or FBI Director took to approve,condone, or ratify the discriminatory selection of respondent as a "high interest'detainee). Respondent does not allege when this conduct allegedly took place,who was allegedly involved, or where it allegedly occurred.").
167. See Id. at 13, 23.
168. Id. at 3.
169. Id. at 5.
170. Id. at 3.
171. See Id. at 30-31.
172. Id. at 31.
173. Id. at 34.
174. See Id. at 35.
175. Id. at 13.
176. See Id. at 36-37.
177. Id. at 13, 19; see Id. at 36 (commenting on the size of the investigation after 9/11).
178. See Id. at 13;
179. see also Id. at 32 ("All of the alleged conduct here was purportedly committed by officers down the chain of command from petitioners.").
180. See Id. at 33.
181. See Id. at 11.
182. See Id. at 11-12.
183. See Id. at 40-41.
184. See Id. at 16-19.
185. See Id. at 25-26.
186. See Id. at 20.
187. Brief of Respondents Michael Rolince and Kenneth Maxwell in Support of Reversal, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No.07-1015), 2008 WL 4063958 [hereinafter Rolince and Maxwell Brief].
188. Brief of Dennis Hasty as Respondent Supporting Petitioners, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No.07-1015), 2008 WL 4063959 [hereinafter Hasty Brief].
189. See Rolince and Maxwell Brief, supra note 153, at 5,9,10,12;
190. Hasty Brief,supra note 154, at 5, 7,11,17, 21, 23.
191. Response Brief, supra note 65.
192. See Id. at 37 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561-562 (2007)).
193. Id. at 38 (citing Twombly, 127 S. Ct. at 1965).
194. Id. at 37.
195. Id. at 9, 23, 26.
196. See Id. at 36 (citing Twombly 550 U.S. at 545, 569 n.14).
197. See Id. at 37.
198. Id. at 26.
199. See Id. at 9-10, 23, 25-31.
200. See Id. at 10-11.
201. Id. at 38.
202. Id. at 2 (quoting Complaint, supra note 14,1H 69, 96-97); 167. see also Id. at 4 (referring to Iqbal's complaint that Ashcroft and Mueller "crafted, approved, anddirected, 'as a matter of policy' that detainees like respondent would be confinedin the ADMAX SHU solely because of membership in protected classes."(quoting Complaint, supra note 14, 96-97)); Id. at 47-48.
203. See Id. at 45-46. Iqbal conceded that he does not allege that Ashcroft and Mueller themselves made detention decisions with respect to him.
204. See Id. at 49("[Respondent has not alleged that petitioners personally classified Mr. Iqbal,but instead that Mr. Iqbal's classification was a result of petitioners' categorical policy of discrimination on the basis of race, religion, and national origin.").
205. See Id. at 4-5 (citing OIG REPORT, supra note 42, at 12-13,16, 21,118);
206. see also Id. at 52 n.9 ('"In many cases,' the "high interest' designation was based onrace, religion, and national origin ." (quoting Opening Brief, supra note 129,at 30)). Iqbal argued that he need not prove that every classification wasdiscriminatory, it was enough that he pleaded that the classification system waspervaded by discriminatory animus and that, in his case, he was classified on adiscriminatory, non-legitimate basis. See Id.
207. Id. at 54.
208. Id. at 50.
209. See Id. at 53-54 n.10.
210. See Id. at 37-38.
211. See Id. at 38.
212. Id. at 41-42.
213. See Id. at 39-41.
214. See Id. at 10-11, 30-34.
215. Id. at 38-39.
216. See Id. at 36.
217. See Ashcroft v. Iqbal, 129 S. Ct. 2931, Docket No. 07-1015.
218. These are roughly the same indivIduals and the same firm who filed a brief in support of the petition for certiorari, as discussed in supra Part II A.
219. Brief of William P. Barr et al. as Amici Curiae in Support of Petitioners at 6, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No.07-1015), 2008 WL 4154531; see also Id. at 27-28.
220. Id. at 16.
221. Id. at 17.
222. Id. at 25-26.
223. See Ashcroft v. Iqbal, 129 S. Ct. 2931, Docket No. 07-1015.
224. See Brief of National Civil Rights Organizations as Amici Curiae in Support of Respondents at 1, 129 S. Ct. 2931 (2008) (No.07-1015), 2008 WL4805225 [hereinafter Yale Brief].
225. See Id. at 2-3.
226. See Id. at 3-4.
227. Brief for the American Ass'n for Justice as Amici Curiae Supporting Respondent, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No.07-1015), 2008 WL 4805229.
228. See Id. at 1-2, 4-6,10-11.
229. See Id. at 2-3, 7-10,13-17.
230. See Id. at 3-4, 20-25.
231. Motion for Leave to File Brief for Amici Curiae Ibrahim Turkmen, et al. in Support of Respondents at iii, iv, 1, 6-7, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No.07-1015), 2008 WL 4805227 [hereinafter Turkmen Brief].
232. See Id. at 4.
233. See Id. at 16-17.
234. See Id. at 18-20.
235. See Id. at 9-13.
236. See Id. at 7-8.
237. See Id. at 21-22.
238. Brief of Amici Curiae Japanese American Citizens League, Pakistani American Public Affairs Committee et al. in Support of Respondent, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No.07-1015), 2008 WL 4805228 [hereinafter Organizations Brief].
239. See Id. at 2.
240. See Id. at 26-28, 39-40.
241. Id. at 35-36.
242. See Id. at 37.
243. See Id. at 4-8.
244. See Id. at 9-11, 22-25.
245. Id. at 3;
246. see also Id. at 13-14.
247. 320 U.S. 81, 104 (1943).
248. See Organizations Brief, supra note 201, at 14-17.
249. Id. at 19.
250. Id. at 32.
251. Brief of The Sikh Coalition et al. in Support of Respondent, at 10, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (No.07-1015), 2008 WL 4805226
252. See Id.
253. See Id. at 19.
254. See Id. at 17-18.
255. See Id. at 20-22.
256. See Id.
257. See Id. at 22-24.
258. See Id. at 27-29.
259. See Id. at 29-30.
260. See Id. at 30.
261. Reply Brief, supra note 73.
262. Id. at 8.
263. See Id. at 3-4, 8-9;
264. see also Id. at 12 ("[The petitioners'] position is that the lower courts failed to follow this Court's decisions in this area and give a 'firm application' of the Federal Rules.").
265. See Id. at 10;
266. see also Id. at 17 ("The Attorney General and the FBI Director generally do not involve themselves in the granular operationaldecisions of their subordinates. And respondent's suggestion that petitioners engaged in this sort of micro-management during one of the largest criminal and national-security investigations in United States history is particularlyimplausible.");
267. Id. at 18 (indicating that the "usual practice" was for Ashcroftand Mueller to not have "actual knowledge" of "decisions being made by lower level officials.").
268. Id. at 10-11;
269. see also Id. at 14 ("[Respondent points to no factual allegations that support the existence of such a discriminatory policy.").
270. See Id. at 15.
271. See Id. at 16 n.3 (citation omitted) (reciting the OIG finding that 184 of 762 "September 11" detainees were classified as indivIduals "of high interest.");
272. see also Id. at 18-19 ("[T]he vast majority of Arab and Muslim men who were arrested on immigration or criminal charges as part of the September 11 investigation were not classified as being 'of high interest."' (citation omitted)).
273. See Id. at 15.
274. See Id. at 16.
275. See Id. at 17.
276. Id. at 15.
277. Id. at 3 (brackets and internal quotation marks omitted) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007));
278. see Id. at 13-14.
279. See Id. at 8;
280. see also Id. at 12 (disavowing any suggestion that Ashcroft and Mueller were asking for a heightened pleading standard);
281. Id. at 13 ("Rather than seeking a heightened pleading standard for any of respondent's allegations, petitioners argue that the normal Rule 8(a)(2) pleading standard must be consIdered-as Bell Atlantic reinforces-contextually with respect to matters such as the plausibility of an allegation.").
282. See Id. at 7.
283. See Id. at 1-2.
284. See Id. at 20 n.6.
285. Reply Brief for Michael Rolince et al. in Support of Reversal, at 2, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) (No.07-1015), 2008 WL 5027911.
286. See Hasty Brief, supra note 154, at 4-6.
287. Transcript of Oral Argument at 1, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (No.07-1015) [hereinafter Oral Argument Transcript].
288. Id.
289. See Id.
290. Id. at 3-4
291. Id. at 19.
292. See Id. at 4.
293. Id.
294. Id. at 5.
295. Id.
296. Id. at 6.
297. Id.
298. See Id.
299. Id. at 11.
300. Id. at 6;
301. see also Id. at 8 ("[T]hat policy we think is . a factually neutral, perfectly lawful law enforcement response to the 9/11 attacks ..").
302. Id. at 7;
303. see also Id. at 9 ("I think the only policy that the allegations bear out with respect to the Attorney General and the Director of the FBI is a policy of holding suspects until cleared.");
304. Id. at 26 ("[T]he complaint in this case says that FBI officials, far removed from the Attorney General and the Director of the FBI, were making these determinations without criteria, without a uniform classification system.").
305. Id. at 12.
306. Id. at 12-13. Although the official oral argument transcript does not italicize case names, quotations of the transcript in this Article have italicized case names to enhance the readability of the excerpts and for consistency with the rest of the text herein.
307. Id. at 16.
308. See Id.
309. Id.
310. Id. at 18-19.
311. Id. at 25-26.
312. Id. at 27-28.
313. Id. at 29.
314. Id. at 30.
315. Id. at 31.
316. Id.
317. Id. at 32.
318. 9.See Id.
319. Id. at 33.
320. Id.
321. Id.; see also Id. at 44 ("We are not alleging that the Petitioners indivIdually Identified particular detainees as of interest or as of high interest. We are alleging that they either created the policy or they knew of and approved of it.'").
322. Id. at 33-34.
323. See Id. at 34;
324. see also Id. at 37 ("[T]he pleading standard isn't different.");
325. Id. ("[TJhis Court has rejected heightened pleading at every instance. I mean, even in Bell Atlantic this Court rejected heightened pleading..").
326. See Id. at 34.
327. Id. at 38.
328. Id. at 38-39.
329. Id. at 40.
330. Id. at 50.
331. Id.
332. Id. at 53.
333. See Id. at 54-55.
334. Id. at 59-60.
335. Id. at 61.
336. Id. at 62.
337. See Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
338. Id. at 1942-1943.
339. Id. at 1943.
340. Id. (quoting OIG REPORT, supra note 42, at 11-12).
341. Id. (citing OIG REPORT, supra note 42, at 1).
342. Id. (citing OIG REPORT, supra note 42, at 111) (internal quotes omitted).
343. Id. (citing OIG Report, supra note 42, at 112-13).
344. Id. at 1943-1944.
345. Id. at 1944.
346. Id. (quoting Complaint, supra note 14, ¶ 47) (first alteration added).
347. Id. (quoting Complaint, supra note 14,¶ 69).
348. Id. (quoting Complaint, supra note 14, ¶96) (alterations in original).
349. Id. (quoting Complaint, supra note 14, ¶10).
350. Id. (quoting Complaint, supra note 14, (alterations in original).
351. Iqbal v. Hasty, 490 F.3d 143, 179 (2d Cir. 2007).
352. Ashcroft v. Iqbal, 129 S. Ct. 1937,1945 (internal quotes omitted).
353. The Court discussed whether it had jurisdiction to entertain the appeal, concluding ultimately that it dId have the authority to hear the case. Id. at 1945-1947. As this threshold question is not relevant to the merits of the allegations, the jurisdictional issue will not be addressed herein.
354. Id. at 1947.
355. See Id. at 1953 ("Our decision in Twombly expounded the pleading standard for all civil actions and it applies to antitrust and discrimination suits alike.") (internal quotations and citation omitted).
356. Id. at 1948.
357. Id.; see Response Brief, supra note 65, at 1 (admitting that vicariousliability "is not even implicated by respondent's allegations against petitioners").
358. See Iqbal, 129 S. Ct. at 1948 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own indivIdual actions, has violated the Constitution.");
359. Id. at 1952 ("[Petitioners cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic" ).
360. 426 U.S. 229, 240 (1976).
361. Iqbal, 129 S. Ct. at 1948.
362. Id. at 1948-1949 (emphasis added);
363. see Id. at 1948 ("[Purposeful discrimination] involves a decisionmaker's undertaking a course of action 'because of,' not merely 'in spite of,' [the action's] adverse effects upon an Identifiable group." (quoting Pers. Admin'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979) (internal quotes omitted; first set of brackets added; second set of brackets in original)).
364. Id. at 1949.
365. Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
366. See Id. at 1950 ("[P]leadings that are no more than conclusions, are not entitled to the assumption of truth.");
367. see Id. at 1949-1950 ("[W]e 'are not bound to accept as true a legal conclusion couched as a factual allegation."') (quoting Twombly, 550 U.S. at 555).
368. Id. at 1949 (citing Twombly, 550 U.S. at 555); see also Id. at 1950 ("Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").
369. Id. at 1950.
370. Id. at 1949 (citing Twombly, 550 U.S. at 556).
371. Id.
372. Id. at 1953 ("[TJhe question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process .. Our rejection of the careful-case-management approach is especially important in suits where Government-official defendants are entitled to assert the defense of qualified immunity.").
373. Id. at 1951 ("It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.");
374. see Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (permitting, arguably, fanciful allegations as long as one could imagine a possibility that they could be true).
375. Iqbal, 129 S. Ct. at 1951 (quoting Complaint, supra note 14, ¶ 96) (internal alterations in original).
376. Id. (quoting Complaint, supra note 14, ¶ 10).
377. Id. (quoting Complaint, supra note 14, ¶ 11).
378. Id. (quoting Complaint, supra note 14, ¶ 47).
379. Id. (quoting Complaint, supra note 14, ¶ 69).
380. Id. ("Taken as true, these allegations are consistent with petitioners' purposefully designating detainees 'of high interest' because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.").
381. Id.
382. See Id. at 1951-1952.
383. Id. at 1952.
384. Id. (internal quotation marks omitted).
385. Id.
386. Id. With respect to motive, the Court observed that "respondent's complaint does not contain any factual allegation sufficient to plausibly suggestpetitioners' discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8." Id.
387. Id. at 1954.
388. See Id.
389. Id. at 1953.
390. Id. at 1952 ("Respondent's account of his prison ordeal alleges serious official misconduct that we need not address here.").
391. Id. ("Our decision is limited to the determination that respondent's complaint does not entitle him to relief from petitioners.").
392. Id. at 1954. The Second Circuit remanded the case back to the district court for further proceedings consistent with the Supreme Court's pronouncements in Iqbal. See Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d Cir. 2009).
393. See Iqbal, 129 S. Ct. at 1954 (Souter, J., dissenting).
394. See Id. at 1956 ("[The petitioners] would be liable if they had 'actual knowledge' of discrimination by their subordinates and exhibited 'deliberateindifference' to that discrimination." (internal quotation marks
395. Id.("[The petitioners] would be subject to supervisory liability if they 'had actual knowledge of the assertedly discriminatory nature of the classification ofsuspects as being of high interest and they were deliberately indifferent to that discrimination.'" (internal quotation marks omitted) (quoting Opening Brief, supra note 129, at 50) (citing Reply Brief, supra note 73, at 21-22));
396. see also Id. at 1957 ("Ashcroft and Mueller have made the critical concession that asupervisor's knowledge of a subordinate's unconstitutional conduct anddeliberate indifference to that conduct are grounds for Bivens liability.").
397. See Id.
398. See Id. at 1956 ("Without acknowledging the parties' agreement as to the standard of supervisory liability, the Court asserts that it must sua sponte decIde the scope of supervisory liability here."); Id. at 1958 ("[W]hat is most remarkable about its foray into supervisory liability is that its conclusion has no bearing on its resolution of the case.").
399. See Id. at 1957 ("The majority.. does ignore the concession.").
400. See Id. at 1956-1957 ("[D]ecIding the scope of supervisory Bivens liability in this case is uncalled for.").
401. See Id. at 1954-1955;
402. see also Id. at 1957 ("[T]he majority is not narrowing the scope of supervisory liability; it is eliminating Bivens supervisory liability entirely.");
403. Id. ("The nature of a supervisory liability theory is that thesupervisor may be liable, under certain conditions, for the wrongdoing of his subordinates, and it is this very principle that the majority rejects.").
404. See Id. at 1957.
405. See Id. at 1957 ("[BJecause of the concession, we have received no briefing or argument on the proper scope of supervisory liability" and the Court'smembers "consequently are in no position to decIde the precise contours ofsupervisory liability here .."); Id. ("[TJhe Court's approach is most unfair toIqbal. He was entitled to rely on Ashcroft and Mueller's concession ."); Id. at 1958 n.2 ("Iqbal had no reason to argue the (apparently dispositive) supervisoryliability standard in light of the concession.").
406. See Id. at 1958 (citing Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir.1995);
407. Woodward v. Worland, 977 F.2d 1392,1400 (10th Cir. 1992)).
408. See Id. (internal quotation marks omitted) (quoting Int'l Action Ctr v. United States, 365 F.3d 20, 28 (D.C. Cir. 2004) (Roberts, J.)).
409. See Id. at 1954-1955.
410. Id. at 1959 (Souter, J., dissenting) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("[A] court must proceed 'on the assumption that all the allegations in the complaint are true (even if doubtful in fact)."" (citation omitted))); Id. at 556 ("[A] well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable ..")).
411. Id.
412. Id.
413. Id. at 1960 (quoting Twombly, 550 U.S. at 570).
414. Complaint, supra note 14, ¶ 47.
415. Id. 169.
416. Iqbal, 129 S. Ct. at 1961 (Souter, J., dissenting).
417. See Id. (citing Twombly, 550 U.S. at 555).
418. See Id. at 1960.
419. See Id. at 1961.
420. Id.
421. See Id. (Breyer, J., dissenting).
422. Id. at 1962.
423. 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004).
424. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2);
425. Conley v. Gibson, 355 U.S. 41, 47 (1975)).
426. Wright & Miller, supra note 364, at § 1216 ;
427. see Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir. 1994) ("At this stage the plaintiff receives the benefit of imagination, so long as the hypotheses are consistent with the complaint.").
428. Fed. R. Civ. P. 8(f)
429. Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514 (2002).
430. Id. at 508 n.1.
431. Erickson v. Pardus, 551 U.S. 81, 94 (2007) (citing Twombly, 550 U.S. at 555-56).
432. Jeffrey W. Stempel, Sanctions, Symmetry, and Safe Harbors: Limiting Misapplication of Rule 11 by Harmonizing it with Pre-Verdict Dismissal Devices, 60 Fordham L. Rev. 257, 269 (1991).
433. See, e.g., Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1100 n.l (9th Cir. 2008) ("In reviewing a motion to dismiss, we accept the alleged facts as true."); Teigen v. Renfrow, 511 F.3d 1072, 1083 (10th Cir. 2007) ("In the context of a motion to dismiss under 12(b)(6), this court accepts all of the allegations in the complaint as true "); State Employees Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 77 (2d Cir. 2007) ("Because the case comes to us after the denial of a motion to dismiss, we accept as true the facts as they are alleged in the amended complaint. "); Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) ("[W]e construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff."); Phipps v. F.D.I.C., 417 F.3d 1006, 1010 (8th Cir. 2005) ("As to the motion to dismiss, under Federal Rule of Civil Procedure 12(b)(6), we must accept the plaintiffs' factual allegations as true and grant all reasonable inferences in the plaintiffs' favor.");
434. 1.Lambeth v. Bd. of Comm'rs of DavIdson County, NC, 407 F.3d 266, 268 (4th Cir. 2005) ("In assessing a Rule 12(b)(6) issue, we accept as true the factual allegations of the challenged complaint. ");
435. Perry v. New England Bus. Serv., Inc., 347 F.3d 343, 344 (1st Cir. 2003) ("On review of a motion to dismiss, we accept as true the factual allegations of the complaint and construe all reasonable inferences therefrom in favor of [the plaintiff].");
436. Toys "R" Us, Inc. v. Step Two, S.A., 318 F.3d 446, 457 (3rd Cir. 2003) ("It is well established that in decIding a motion to dismiss for lack of jurisdiction, a court is required to accept the plaintiffs allegations as true, and is to construe disputed facts in favor of the plaintiff."); Nolen v. Nucentrix Broadband Networks Inc., 293 F.3d 926, 928 (5th Cir. 2002) ("In [evaluating a Rule 12(b)(6) motion], we accept the facts alleged in the complaint as true and construe the allegations in the light most favorable to the plaintiffs.");
437. Martinez v. Hooper, 148 F.3d 856, 858 (7th Cir. 1998) ("[B]efore us [is] a motion to dismiss the complaint, and the allegations in the complaint must be accepted as true . ");
438. Harris v. Ladner, 127 F.3d 1121, 1123 (D.C. Cir. 1997) ("To determine whether the district court appropriately dismissed [the plaintiffs] action for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, we must accept her factual allegations as true ." (citations omitted)); Harper v. Thomas, 988 F.2d 101,103 (11th Cir. 1993) ("We review the dismissal of a case [pursuant to Rule 12(b)(6)] de novo, accepting all allegations in the complaint as true and construing the facts in a light favorable to the plaintiff.").
439. Elliott J. Weiss, The New Securities Fraud Pleading Requirement: Speed Bump or Road Block?, 38 Ariz. L. Rev. 675, 691 (1996).
440. See Minneapolis Taxi Owners Coal., Inc. v. City of Minneapolis, 572 F.3d502, 506 (8th Cir. 2009) (reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), accepting the facts as alleged in the complaint, and granting all reasonable inferences in favor of the non-moving party); Vila v. Inter-American Inv., Corp., 570 F.3d 274, 292 (D.C. Cir. 2009) ("Rule 12(b)(6) of course requires us to draw all reasonable inferences in favor of the plaintiff. "); Catholic League for Religious & Civil Rights v. City of S.F., 567 F.3d 595,599 (9th Cir. 2009) ("In addressing [a dismissal for failure to state a claim underRule 12(b)(6)], we must accept the allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff.");
441. Brooks v. City of Chi., 564 F.3d 830, 832 (7th Cir. 2009) ("On appeal from an order granting a motionto dismiss pursuant to Fed.R.Civ.P. 12(b)(6), we review de novo whether the appellant states a claim for which relief can be granted. We accept as true all well-pleaded allegations, and we draw all reasonable inferences in theappellant's favor."); Severance v. Patterson, 566 F.3d 490, 501 (5th Cir. 2009)("We construe the complaint in the light most favorable to the plaintiff and drawall reasonable inferences in the plaintiffs favor.");
442. McGovern v. City of Phila.,554 F.3d 114, 115 (3d Cir. 2009) ("We accept all well-pleaded allegations in thecomplaint as true and draw all reasonable inferences in [the non-movant's]favor.");
443. Gray v. Evercore Restructuring L.L.C., 544 F.3d 320, 324 (1st Cir. 2008)(drawing all reasonable inferences in favor of the non-moving party in reviewinga Rule 12(b)(6) motion); Ruiz v. McDonnell, 299 F.3d 1173, 1181 (10th Cir. 2002) ("The court must view all reasonable inferences in favor of the plaintiff, and thepleadings must be liberally construed."); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) ("[The Court] review[s] de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6) [ ] [by] construing the complaint liberally, accepting all factual allegations in the complaint as true,and drawing all reasonable inferences in the plaintiffs favor.");
444. Denno v. Sch. Bd., 218 F.3d 1267, 1270 (11th Cir. 2000) ("The district court dismissed [the plaintiffs] claim against the indivIdual defendants pursuant to Fed.R.Civ.P.12(b)(6) based on qualified immunity. In the posture of this case, we arerequired to assume all reasonable inferences from the complaint in favor of [the non-movant].");
445. Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)("[In] a Rule 12(b)(6) motion, [the court will] accept[ ] all well-pleaded allegations in the plaintiffs complaint as true and draw[ ] all reasonable factual inferences from those facts in the plaintiffs favor."); Sinay v. Lamson & SessionsCo., 948 F.2d 1037, 1039-40 (6th Cir. 1991) ("Whether the district court properlydismissed the complaint pursuant to Fed. R. Civ. P. 12(b)(6) is a question of law subject to de novo review. All factual allegations are deemed admitted, and when an allegation is capable of more than one inference, it must be construedin the plaintiffs' favor." (citations omitted)).
446. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internalpunctuation and quotation omitted); accord Twombly, 550 U.S. at 555 ("[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations ..") (citing Conley v. Gibson, 355 U.S. 41, 47 (1957);Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1994)).
447. 8 U.S. 265 (1986).
448. Id. at 286.; accord Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").
449. See Denton v. Hernandez, 504 U.S. 25, 33 (1992) ("[A] finding of factual frivolousness is appropriate when the facts alleged rise to the level of the irrational or the wholly incredible-");
450. Neitzke v. Williams, 490 U.S. 319, 327-328 (1989) ("[Courts are empowered to] dismiss those claims whose factual contentions are clearly baseless .. [For example,] claims describing fantastic or delusional scenarios, claims with which federal district judges are all toofamiliar.");
451. see also Iqbal, 129 S. Ct. at 1959 (Souter, J., dissenting) ("[Courtsneed not credit as true] allegations that are sufficiently fantastic to defy realityas we know it: claims about little green men, or the plaintiffs recent trip toPluto, or experiences in time travel."). The Twombly Court may have put out topasture the "no set of facts" rubric of Conley, but it dId not repudiate thisexception as described by Justice Souter in his dissent. See Twombly, 550 U.S. at 546.
452. See, e.g., Mixon v. Ohio, 193 F.3d 389, 400 (6th Cir. 1999) ("[Courts] neednot accept as true legal conclusions or unwarranted factual inferences."); seealso Maio v. Aetna, Inc., 221 F.3d 472, 485 n.12 (3d Cir. 2000) (same).
453. Conley, 355 U.S. at 45-46.
454. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).
455. Id. at 563.
456. Id. at 556.
457. Id. at 570.
458. Id. at 555 (citing 5 WRIGHT & MILLER, supra note 364, at § 1216).
459. Id. at 570.
460. Id.
461. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." (quoting Twombly, 550 U.S. at 556)).
462. See Twombly, 550 U.S. at 563.
463. Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555).
464. See supra notes 377-378
465. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
466. 5 Wright & Miller, supra note 364, at § 1215.
467. Bennett v. SchmIdt, 153 F.3d 516, 518 (7th Cir. 1998) (Easterbrook, J.) (stating that this statement would suffice for notice pleading purposes).
468. See 5 Wright & Miller, supra note 364, at § 1216 (commenting on the purpose of the Federal Rules).
469. Bennett, 153 F.3d at 518.
470. See Complaint, supra note 14, ¶¶ 10-11, 69, 96-97, 232, 235, 247, 250.
471. Howard Wasserman, Iqbal and the Death of Notice Pleading: Part II, prawfsblog, May 18, 2009, http://prawfsblawg.blogs.com/prawfsblawg/2009/05/ iqbal-and-the-death-of-notice-pleading-part-ii.html [hereinafter Wasserman Post].
472. al-KIdd v. Ashcroft, 580 F.3d 949, 975-977 (9th Cir. 2009).
473. Id. at 954-955 (discussing statements from a press briefing by Ashcroft and congressional testimony by Mueller).
474. See, e.g., U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983) ("There will seldom be 'eyewitness' testimony as to the employer's mental processes."); see also Bailey v. Ala., 219 U.S. 219, 233 (1911) ("As the intent isthe design, purpose, resolve, or determination in the mind of the accused, it can rarely be proved by direct evIdence, but must be ascertained by means ofinferences from the facts and circumstances developed by the proof.").
475. Complaint, supra note 14, H 96.
476. Id. 1 10.
477. Id. 111.
478. Ashcroft v. Iqbal, 129 S. Ct. 1937,1951 (2009).
479. Complaint, supra note 14, ¶ 47.
480. Id. 1 69.
481. See Iqbal, 129 S. Ct. at 1951-1952.
482. Iqbal, 129 S. Ct. at 1961 (Souter, J., dissenting);
483. see Wasserman Post, supra note 398 ("Can anyone find a principled way to determine why these are any less bare than the three [allegations accepted by the Court as true]?").
484. See Jared A. Goldstein, Is There a "Religious Question" Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, 54 Cath. U. L. Rev. 497,536-537 (2005).
485. See Iqbal, 129 S. Ct. at 1940-1950 (describing this two-pronged framework);see also Moss v. United States Secret Serv., 572 F.3d 962, 970 (9th Cir. 2009)(setting out and then following this two step "sequence"); Fowler v. UPMCShadysIde, 578 F.3d 203, 210-211 (3d Cir. 2009) (same); Wood ex rel. United States v. Applied Research Assocs., Inc., 328 F. App'x 744, 746-747 (2d Cir. 2009) (same);
486. Harris v. Mills, 572 F.3d 66, 71-72 (2d Cir. 2009) (same);
487. Neutze v. United States, 88 Fed. CI. 763, 768-769 (2009) (same).
488. Iqbal, 129 S. Ct. at 1950.
489. Id. at 1960-1961 (Souter, J., dissenting).
490. 551 U.S. 308 (2007).
491. Id. at 322.
492. See Id. at 322-323
493. See, e.g., Bernheim v. Litt, 79 F.3d 318, 326 (2d Cir. 1996); Guercio v. Brody, 911 F.2d 1179,1183 (6th Cir. 1990).
494. See supra notes 364-369 and accompanying text.
495. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) ("At this stage of the litigation, we must accept petitioner's allegations as true."); Goldstein v. Pataki, 516 F.3d 50, 53 (2d Cir. 2008) ("[W]e must derive our version of the factsof record.. from the allegations set forth in the plaintiffs' Amended Complaint, 'taking [them] as true and drawing all reasonable inferences in favor of the plaintiff[s]."') (alterations in original) (quoting Stuto v. Fleishman, 164 F.3d 820,824 (2d Cir.1999)));
496. Bradley v. Chiron Corp., 136 F.3d 1317, 1321 (9th Cir. 1998)("In keeping with the rules governing dismissal under Rule 12(b)(6) the factual statements in the complaint are accepted as true. The dismissal of a claimunder Rule 12(b)(6) is proper only when, on the complainant's version of the facts, the premises of a cognizable claim have not been stated."); Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988) ("[W]hen there is a battle of affIdavits placing different constructions on the facts, the court is inclined to give greater weight, in the context of a motion to dismiss, to the plaintiffs version ." (citation and internal quotation marks omitted)).
497. See Complaint, supra note 14, ¶¶ 3, 52, 96.
498. See Reply Brief, supra note 73, at 15.
499. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1959 (2009) (Souter, J., dissenting)("If these factual allegations are true, Ashcroft and Mueller were, at the very least, aware of the discriminatory policy being implemented and deliberately indifferent to it."). The plausibility of the illegal conduct complained of will be discussed in greater detail in the next part, infra Part IV.B.
500. Iqbal, 129 S. Ct. at 1951.
501. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
502. Id. at 249.
503. Jackson v. Virginia, 443 U.S. 307, 319 (1979).
504. Id. This feature of the Court's ruling may raise constitutional implications. See U.S. CONST, amend. VII ("In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be . preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."). This question warrants exploration and, as it is outsIde the scope of this Article, will require resolution elsewhere.
505. See Monroe v. City of Charlottesville, Va., 579 F.3d 380, 389-90 (4th Cir. 2009), cert, denied, 78 U.S.L.W. 3418 (Mar. 8, 2010).
506. Bennett v. SchmIdt, 153 F.3d 516, 519 (7th Cir. 1998).
507. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951-52 (2009).
508. I will not discuss the Court's treatment of supervisory liability and respondeat superior, which was thoroughly critiqued by Justice Souter. See Id. at 1957 (Souter, J., dissenting).
509. See Id. at 1944.
510. Id. at 1950.
511. Chao v. Ballista, 630 F. Supp. 2d 170, 177 (D. Mass. 2009) (quoting Iqbal, 129 S. Ct. at 1951).
512. Response Brief, supra note 65, at 54.
513. See Reply Brief, supra note 73, at 10; see also Id. at 17 ("The Attorney General and the FBI Director generally do not involve themselves in the granular operational decisions of their subordinates. And respondent's suggestion that petitioners engaged in this sort of micro-management during one of the largest criminal and national-security investigations in United States history is particularly implausible."); Id. at 18 (indicating that the "usual practice" was for Ashcroft and Mueller to not have "actual knowledge" of "decisions being made by lower level officials.").
514. Iqbal v. Hasty, 490 F.3d 143,166 (2d Cir. 2007).
515. Id. at 175-76. The district court similarly concluded that "the post- September 11 context provIdes support for plaintiffs' assertions that defendants were involved in creating and/or implementing the detention policy under which plaintiffs were confined." Elmaghraby v. Ashcroft, No. 04-CV-01809, 2005 WL 2375202, at 20 (E.D.N.Y. Sept. 27, 2005).
516. Iqbal, 129 S. Ct. at 1952.
517. Id. at 1951.
518. Korematsu v. United States, 323 U.S. 214, 217-218 (1944).
519. Id. at 223.
520. Hirabayashi v. United States, 320 U.S. 81 (1943).
521. Id. at 101.
522. See Eric Muller, 12/7 and 9/11: War, Liberties, and the Lessons of History, 104 W. Va. L. Rev. 571, 592 (2002) ("Justice Jackson's instruction from sixty years ago must guIde our steps today.").
523. Korematsu, 323 U.S. at 246 (footnote omitted).
524. For example, in public Ashcroft urged Americans not to commit acts of hate violence against Arabs or Muslims. See Prepared Remarks, John Ashcroft, Attorney General, Dep't of Justice (Sept. 13, 2001), http://www.justice.gov/ archive/ag/speeches/2001/0913pressconference.htm ("We must not descend to the level of those who perpetrated [September 11, 2001's] violence by targeting indivIduals based on their race, their religion, or their national origin[.] Such reports of violence and threats are in direct opposition to the very principles and laws of the United States and will not be tolerated.").
525. See Elbert Lin, Korematsu Continued , 112 Yale L.J. 1911, 1913-17 (2003) (suggesting that Korematsu has been "revived" after 9/11, even though features of 9/11 do not duplicate each aspect of the internment).
526. See, e.g., Civil Liberties Act of 1988, 50 App. U.S.C. §§ 1989-1989(b)-9 (2006) ("Congress recognize[d] that . a grave injustice was done to both citizens and permanent resIdent aliens of Japanese ancestry by the evacuation,relocation, and internment of civilians during World War II. [and that these actions] were motivated largely by racial prejudice, wartime hysteria, and a failure of political leadership.").
527. See Elmaghraby v. Ashcroft, No. 04-CV-01809, 2005 WL 2375202, at *1 n.l (E.D.N.Y. Sept. 27, 2005).
528. Ashcroft v. Iqbal, 129 S. Ct. 1937,1951 (2009).
529. See Adam B. Cox & Eric A. Posner, The Second-Order Structure of Immigration Law, 59 Stan. L. Rev. 809, 810 (2007) ("In the immediate aftermath of the attacks, federal officials conducted sweeps in which they rounded up over a thousand noncitizens [where] [n] early all of these noncitizens were from predominantly Muslim countries.").
530. See Registration and Monitoring of Certain Nonimmigrants from Designated Countries, 67 Fed. Reg. 57,032 (Sept. 6, 2002).
531. See Memorandum from the Deputy Attorney Gen. on GuIdance for Absconder Apprehension Initiative to the Comm'r of Immigration and Naturalization Serv. et al. (Jan. 25, 2002).
532. See Press Release, Dep't of Homeland Security, Operation Liberty Shield (Mar. 17, 2003), http://www.dhs.gov/xnews/releases/press-release-0115.shtm.
533. See Muneer I. Ahmad, A Rage Shared by Law: Post-September 11 Racial Violence as Crimes of Passion, 92 Cal. L. Rev. 1259,1271 (2004).
534. Id. at 1276.
535. DavId Cole, Enemy Aliens, 54 Stan. L. Rev. 953, 960 (2002).
536. OIG REPORT, supra note 42, at 39.
537. See OIG REPORT, supra note 42, at 20-21, 69,158,196.
538. See Reply Brief, supra note 73, at 15.
539. Complaint, supra note 14, U 52.
540. See Grutter v. Bollinger, 539 U.S. 306 (2003).
541. See Id. at 319-320
542. See Id.
543. Shaw v. Reno, 509 U.S. 630, 647 (1993).
544. Boumediene v. Bush, 128 S. Ct. 2229, 2277 (2008).
545. Home Bldg. & Loan Assn. v. Blaisdell, 290 U.S. 398, 426, (1934).
546. U.S. (4 Wall.) 2, 120-121 (1866).
547. It is difficult to determine how Iqbal's allegations of racial discrimination in wartime do not invite the same searching inquiry and skepticism that the Court has applied in other areas of law in which racial classifications are at issue. See Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion) ("Indeed the purpose of strict scrutiny is to 'smoke out' illegitimate usesof race by assuring that [the government] is pursuing a goal important enough to warrant use of a highly suspect tool.").
548. Olmstead v. United States, 277 U.S. 438, 479 (1928) (Brandeis, J., dissenting) (emphasis added).
549. See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
550. See Oral Argument Transcript, supra note 241, at 27.
551. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,403 U.S. 388 (1971).
552. See Yale Brief, supra note 187, at 2-3.
553. Id. at 191 (emphasis added).
554. See text accompanying supra note 394.
555. See, e.g., Jack Goldsmith, The Terror PresIdency 67-69, 75 (2007).
556. OIG report, supra note 42, at 164.
557. See Monroe v. City of Charlottesville, Va., 579 F.3d 380 (4th Cir. 2009), cert, denied, 78 U.S.L.W. 3418 (Mar. 8, 2010). For my commentary on the broader implications of IqbaVs logic extending past the national security arena, see Dawinder S. SIdhu, Civil Rights and the Wartime Supreme Court (Feb. 22, 2010) ("[Iqbal and Monroe] demonstrate the mutuality of legal interests between traditional race-based civil rights and wartime civil rights, specifically the doctrinal relationship implicating these groups as well as the reciprocal benefits in eradicating the viability of classifications premised on race, religion, or national origin."), available at http://www.scotusblog.com/ 2010/02/civil-rights-and-the-wartime-supreme-court/
558. Jackson, supra note 1, at 116.