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Wednesday, September 09, 2009

Pleading and al-Kidd

Continuing with my thoughts on the Ninth Circuit decision in al-Kidd v. Ashcroft, the Ninth Circuit decision denying a motion to dismiss of claims challenging DOJ use of material-witness detention as a post-9/11 investigative tool. The final big issue, worthy of its own post, is what the court had to say about pleading in light of Iqbal.

The majority tried to apply a nuanced, but ultimately more-forgiving approach to pleading. It rejected as conclusory and insufficient the allegations as to Ashcroft's involvement with al-Kidd's conditions of confinement, for all the reasons discussed in Iqbal itself.

But otherwise, the court does not spend much time analyzing the Fourth Amendment allegations under Iqbal. The court merely says the following in finding the allegations sufficient:

al-Kidd alleges that he was arrested without probable cause pursuant to a general policy, designed and implemented by Ashcroft, whose programmatic purpose was not to secure testimony, but to investigate those detained. Assuming that allegation to be true, he has alleged a constitutional violation.

The real detailed Iqbal analysis was over the § 3144 claim--that Ashcroft enacted and supported a policy of violating the material-witness statute. The court emphasized how much more particular detail--specific, widely publicized statements by Ashcroft, FBI Director Mueller, and others about the pretextual and expansive use of § 3144--there was in al-Kidd's complaint as compared with the complaint in Iqbal. And clearly detail is demanded. From that detail, the court was willing to draw a number of favorable inferences as plausible and thus consistent with Iqbal and Twombly. For example, the court read the complaint to plausibly allege that Ashcroft knew of and did not stop misuse of the statute by underlings, based on the public nature of that misuse and statements explaining it. The court also read the complaint to plausibly allege that Ashcroft purposely instructed his underlings to do so, based on his public statements about the import of aggressive use of § 3144 in the War on Terror.

One lesson of this case is that specific, detailed examples of conduct and events are necessary to allege (inferentially) things such as knowledge, purpose, intent, agreement, and other state of mind. The allegation that someone "knew" X or did something "because of" Y almost certainly is not going to be sufficient. This is consistent with the Ninth Circuit's decision a few weeks ago in which allegations that Secret Service agents did something for viewpoint-discriminatory reasons were disregarded as conclusory.

I believe this undercuts arguments made by Adam Steinman in a CoOp post and in a great new article. He argues, for example, that in Iqbal, the following would be sufficient, without the need for greater detail (when they ordered it, the form it took, how they know):

Ashcroft and Mueller ordered that all post-September-11th detainees who are Arab Muslim men be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI, and they issued this order because of its adverse effect on this particular group.

But after reading the Ninth Circuit's analysis here (and in Moss), I am not so sure.

Another lesson is that plaintiffs are going to have much less success with a claim involving conduct that received less publicity and media coverage than this one. Al-Kidd could point to specific statements in the public record allowing the inference of an intentional policy or high-level knowledge. Unlike many (most?) civil rights claims, he did not need discovery to learn about specific instances or acts that support his claim. But many plaintiffs will not be so fortunate. Indeed, that divide between classes of cases seems inconsistent with the use of Bivens and civil rights damages litigation as a supplemental tool for investigating government misconduct; discovery (and the opportunity for it) is supposed to be part of that.

Finally, this opinion demonstrates the tremendous, and seemingly inconsistent, discretion courts wield in deciding 12(b)(6) motions, especially when considered in conjunction with recent Ninth Circuit decisions in Moss (granting dismissal under Iqbal) and Padilla v. Yoo (denying dismissal).

Posted by Howard Wasserman on September 9, 2009 at 08:00 AM in Civil Procedure, Constitutional thoughts, Current Affairs, Howard Wasserman, Law and Politics | Permalink

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