[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
                       ACCESS TO JUSTICE DENIED:
                           ASHCROFT v. IQBAL

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION, 
                   CIVIL RIGHTS, AND CIVIL LIBERTIES

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 27, 2009

                               __________

                           Serial No. 111-36

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov


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                       COMMITTEE ON THE JUDICIARY

                 JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California         LAMAR SMITH, Texas
RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr., 
JERROLD NADLER, New York                 Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
ZOE LOFGREN, California              BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
MAXINE WATERS, California            DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida               STEVE KING, Iowa
STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
  Georgia                            JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
MIKE QUIGLEY, Illinois               JASON CHAFFETZ, Utah
JUDY CHU, California                 TOM ROONEY, Florida
LUIS V. GUTIERREZ, Illinois          GREGG HARPER, Mississippi
TAMMY BALDWIN, Wisconsin
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York

       Perry Apelbaum, Majority Staff Director and Chief Counsel
      Sean McLaughlin, Minority Chief of Staff and General Counsel
                                 ------                                

  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                   JERROLD NADLER, New York, Chairman

MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr., 
ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr.,      STEVE KING, Iowa
  Georgia                            TRENT FRANKS, Arizona
TAMMY BALDWIN, Wisconsin             LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan          JIM JORDAN, Ohio
STEVE COHEN, Tennessee
SHEILA JACKSON LEE, Texas
JUDY CHU, California

                     David Lachmann, Chief of Staff

                    Paul B. Taylor, Minority Counsel


                            C O N T E N T S

                              ----------                              

                            OCTOBER 27, 2009

                                                                   Page

                           OPENING STATEMENTS

The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Chairman, Subcommittee on the 
  Constitution, Civil Rights, and Civil Liberties................     1
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Ranking Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil 
  Liberties......................................................     2
The Honorable Henry C. ``Hank'' Johnson, Jr., a Representative in 
  Congress from the State of Georgia, and Member, Subcommittee on 
  the Constitution, Civil Rights, and Civil Liberties............     4

                               WITNESSES

Mr. Arthur R. Miller, Professor, New York University School of 
  Law
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Mr. Gregory C. Katsas, former Assistant Attorney General, Civil 
  Division, U.S. Department of Justice
  Oral Testimony.................................................    31
  Prepared Statement.............................................    33
Mr. John Vail, Center for Constitutional Litigation
  Oral Testimony.................................................    59
  Prepared Statement.............................................    61
Mr. Debo P. Adegbile, NAACP Legal Defense and Educational Fund
  Oral Testimony.................................................    77
  Prepared Statement.............................................    79

                                APPENDIX

Material Submitted for the Hearing Record........................   103


                       ACCESS TO JUSTICE DENIED: 
                           ASHCROFT v. IQBAL

                              ----------                              


                       TUESDAY, OCTOBER 27, 2009

              House of Representatives,    
              Subcommittee on the Constitution,    
                 Civil Rights, and Civil Liberties,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 2:37 p.m., in 
room 2141, Rayburn House Office Building, the Honorable Jerrold 
Nadler (Chairman of the Subcommittee) presiding.
    Present: Representatives Nadler, Delahunt, Johnson, Chu, 
Sensenbrenner, Franks, and King.
    Staff present: (Majority) Kanya Bennett, Counsel; David 
Lachmann, Subcommittee Chief of Staff; and (Minority) Paul 
Taylor, Counsel.
    Mr. Nadler. This hearing of the Subcommittee on the 
Constitution, Civil Rights, and Civil Liberties will now come 
to order, and I will first recognize myself for a statement.
    Today's hearing looks at the implications of the Supreme 
Court's recent ruling in the case of Ashcroft v. Iqbal and its 
predecessor, Bell Atlantic Corporation v. Twombly. Although the 
case deals with the liability of Federal officials for the 
post-September 11th roundup of the ``usual suspects,'' the 
Iqbal decision has had a far-reaching effect on the rights of 
litigants in a broad range of cases. Its implications are only 
now becoming clear, at least to most of us, and the fallout is 
deeply disturbing.
    Javaid Iqbal is a Pakistani national that was picked up in 
the wake of the September 11th attacks. He was deemed to be an 
individual of high interest with regard to the investigation of 
the attacks and was placed in the special housing unit in the 
Brooklyn--in the Federal detention center in Brooklyn, New 
York, which happens to be in my district. He subsequently 
alleged that he was beaten and denied medical care and that his 
designation and mistreatment was the result of an 
unconstitutional determination based on his religion, race, and 
national origin.
    The distinguished Ranking Member, the gentleman from 
Wisconsin, who was the Chairman of the full Committee at the 
time, visited the Brooklyn facility at the time as part of his 
oversight function, and I joined him in that visit.
    The allegations were serious then, and with what we all 
know now, are even more disturbing. When the Supreme Court 
considered Mr. Iqbal's claim, however, it did not reach the 
merits of the claim; it did something truly extraordinary. 
Rather than questioning, as required under rule 8(a)(2) of the 
Rules of Civil Procedure, whether the plaintiff had included a 
``short and plain statement of the claim showing that the 
pleader is entitled to relief,'' which is what rule 8(a)(2) 
says a claim should contain, it dismissed the case not on the 
merits or on the law, but on the broad assertion that the 
claim, as stated in the pleading, was not ``plausible.''
    In the past the rule had been, as the Supreme Court stated 
in Conley v. Gibson 50 years ago, that the pleading rules exist 
to ``give the defendant fair notice of what the claim is and 
the grounds upon which it rests,'' assuming provable facts. Now 
the Court has required that prior to discovery, courts must 
somehow assess the plausibility of the claim.
    This rule will reward any defendant who succeeds in 
concealing evidence of wrongdoing, whether it is government 
officials who violate people's rights, polluters who poison the 
drinking water, employers who engage in blatant discrimination, 
or anyone else who violates the law. Often evidence of 
wrongdoing is in the hands of the defendants, of the 
wrongdoers, and the facts necessary to prove a valid claim can 
only be ascertained through discovery.
    The Iqbal decision will effectively slam shut the 
courthouse door on legitimate plaintiffs based on the judge's 
take on the plausibility of a claim rather than on the actual 
evidence, which has not been put into court yet, or even 
discovered yet. This is another wholly inventive new rule 
overturning 50 years of precedent designed to close the 
courthouse doors. This, combined with tightened standing rules 
and cramped readings of existing remedies, implement this 
conservative Court's apparent agenda to deny access to the 
courts to people victimized by corporate or government 
misconduct.
    This is judicial activism at its worst, judicial usurpation 
of the procedures set forth for amending the Federal Rules of 
Civil Procedure. I plan to introduce legislation, with the 
distinguished gentleman from Georgia, Mr. Johnson, and the 
distinguished Chairman of the full Committee to correct this 
misreading of the rules and to restore the standard followed 
for the last 50 years since the Supreme Court's decision in 
Conley.
    Rights without remedies are no rights at all. There is an 
ancient maxim of the law that says there is no right without a 
remedy. Americans must have access to the courts to vindicate 
their rights, and the concerted attempt by this Supreme Court 
to narrow the ability of plaintiffs to go into courts to 
vindicate their rights is something that must be reversed.
    I look forward to the testimony of our distinguished panel 
of witnessed. I yield back the balance of my time.
    The Chair now recognizes the distinguished Ranking Member 
for 5 minutes for an opening statement.
    Mr. Sensenbrenner. Thank you very much, Mr. Chairman.
    The Supreme Court decided a case called Ashcroft v. Iqbal 
and dismissed the lawsuit on the grounds that a detainee's 
complaint failed to plead sufficient facts, to state an 
intentional discrimination claim against government officials, 
including the director of the FBI and the attorney general. The 
person bringing that lawsuit was arrested in the U.S. on 
criminal charges and detained by Federal officials in the wake 
of the September 11th terrorist attacks.
    He pleaded guilty to the criminal charges, served a term in 
prison, and was removed to his native Pakistan. But he 
indiscriminately sued high level government officials anyway, 
arguing that they were somehow responsible for the allegedly 
harsh treatment he received at a maximum security prison.
    The issue in the case was simple: Did he allege claims 
against the Federal officials that were reasonably specific 
enough to allow the case to proceed? Here is what the Supreme 
Court said, ``The pleading standard in Federal Rule 8 announces 
does not require detailed factual allegations but demands more 
than an unadorned 'The defendant unlawfully harmed me' 
accusation. A pleading that offers labels and conclusions or a 
formulaic recitation of the elements of the cause of action 
will not do. Nor does a complaint suffice if it tenders naked 
assertions devoid of further factual enhancement.''
    Iqbal's pleadings were simply so conclusory in nature and 
so lacking in any specific allegations that to have allowed the 
case to proceed would have been a travesty of justice. Again, 
as the Supreme Court itself stated in the case, ``The September 
11th attacks were perpetrated by 19 Arab Muslim hijackers who 
counted themselves members in good standing of al-Qaeda, an 
Islamic fundamentalist group. Al-Qaeda was headed by another 
Arab Muslim, Osama bin Laden, and composed in large part of his 
Arab Muslim disciples.
    It should come as no surprise that the legitimate policy 
directing law enforcement to arrest and detain individuals 
because of their suspected links to the attacks would produce a 
disparate incidental impact on Arab Muslims, even though the 
purpose of the policy was to target neither Arabs nor Muslims.
    All the complaint plausibly suggests 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 a suspect could be 
cleared of terrorist activity.''
    The Court then went on to describe the threats to national 
security that would result from allowing baseless claims such 
as Iqbal's to proceed, saying, ``Litigations, though necessary 
to ensure that officials comply with the law, exact heavy costs 
in terms of efficiency and expenditure of valuable time and 
resources that might otherwise be directed to the proper 
execution of the work of the government. The costs of diversion 
are only magnified when government officials are charged with 
responding to a national and international security emergency 
unprecedented in the history of the American Republic.''
    Further, there is no justifiable justification for 
congressional intervention in this case. First, the Iqbal 
decision merely reiterated law and Federal pleading principles. 
Dozens of lower court decisions have applied the same standard 
since the 1950's, refusing to credit a complaint's bald 
assertions and unsupported conclusions or the like when 
deciding a motion to dismiss for failure to stay the claim.
    Finally, even if the lower courts conclude that some 
lawsuits can't proceed under those standards, the courts 
continue to have the power under the Federal Rules of Civil 
Procedure to allow plaintiffs to amend their complaints, make 
them sufficient if possible, and to refile them. The license to 
practice law is all too often the license to file frivolous and 
baseless lawsuits at great costs and expense to innocent 
parties.
    If the Iqbal decision is overridden by statute, lawyers of 
course would save money because their complaints would simply 
have to list the names of the people sued with no supporting 
facts. But it would be immensely costly to the cause of 
justice, the innocent, and to our national security.
    And I yield back the balance of my time.
    Mr. Nadler. I thank the gentleman.
    In the interest of proceeding to our witnesses and mindful 
of our busy schedules I ask that other Members submit their 
statements for the record. Without objection all Members will 
have 5 legislative days to submit opening statements for 
inclusion in the record. Without objection the Chair will be 
authorized to declare a recess of the hearing, which we will do 
only if there are votes on the floor.
    We will now turn to our witnesses, as we--oh, I am told 
that Mr. Johnson has asked if we would allow him an opening 
statement, so I will recognize the gentleman from Georgia for 
an opening statement.
    Mr. Johnson. Thank you, Mr. Chairman, for holding this 
important oversight hearing.
    Access to the courts and the ability for claims to be heard 
by a judge or jury are fundamental to our system of justice. 
For over 50 years courts have used the Conley standard to 
ensure that plaintiffs had the opportunity to present their 
case to Federal judge even when they did not yet have the full 
set of facts.
    As Chairman of the Subcommittee on Courts and Competition 
Policy, I believe that it is extremely important that a 
defendant be given wide latitude for pleading, and plaintiffs 
need to have this latitude as well.
    It seems that this measure penalizes plaintiffs as opposed 
to defendants, particularly in discrimination cases where you 
cannot uncover the wrongdoing without doing some basic 
discovery, and this decision would do away with that 
possibility because judges would be in a position to use their 
subjective wisdom, if you will, or perhaps even their desire to 
get a high-paying job in the future in the public--I mean, in 
the private sector, could be jeopardized if--or it could be 
enhanced, I will put it like that, by their ruling on a motion 
to dismiss based on inadequacy of the pleadings.
    With the Twombly and Iqbal decisions, pleading standards 
are set so high that plaintiffs are now frequently denied 
access to the courts. In fact, since the Iqbal decision earlier 
this year over 1,600 district and appellate court cases have 
been thrown out due to insufficient pleadings, and that is just 
totally unacceptable to the notions of fair play and 
substantial justice that was imbedded into my memory during law 
school.
    Another problem with the Iqbal decision is that the Supreme 
Court bypassed the Federal judiciary by amending the Federal 
Rules of Civil Procedure without going through the process laid 
out in the Rules Enabling Act. This is the epitome of judicial 
activism, as they like to call it, in changing the law through 
judicial fiat, as opposed to legislative fiat.
    It is the role of the judiciary conference of the United 
States to change the Federal rules through a deliberative 
procedure, and bypassing the Judicial Conference's process the 
Supreme Court may very well have, in the words of Justice 
Ginsburg, ``messed up the Federal rules.'' I am still as 
frustrated as she was when she made that comment.
    I look forward to joining Chairman Nadler as an original 
cosponsor of his noted pleading legislation, and I plan to hold 
a legislative hearing and mark up this important bill in the 
Courts Subcommittee once the bill is introduced. Thank you.
    Mr. Nadler. I thank the gentleman.
    We will now turn to our witnesses. As we ask questions of 
our witnesses after their statements, the Chair will recognize 
Members in the order of their seniority in the Subcommittee, 
alternating between majority and minority, provided that the 
Member is present when his or her turn arrives.
    Members who are not present when their turns begin will be 
recognized after the other Members have had the opportunity to 
ask their questions. The Chair reserves the right to 
accommodate a Member who is unavoidably late or only able to be 
with us for a short time.
    I will now introduce the witnesses. Arthur Miller was 
appointed as university professor to the faculty of the New 
York University School of Law and the School of Continuing and 
Professional Studies in 2007. Previously, Professor Miller had 
served as the Bruce Bromley Professor of Law, at Harvard Law 
School, since 1971. For many years Professor Miller was the 
legal editor of ABC's Good Morning America and hosted a program 
on the Courtroom Television Network.
    Gregory Katsas--I hope I pronounced that right--Katsas--
Gregory Katsas served as the assistant attorney general for the 
Civil Division of the Department of Justice under the Bush 
Administration in 2008. Prior to his confirmation Mr. Katsas 
served as deputy assistant attorney general, principal deputy 
associate attorney general, and acting associate attorney 
general for the Civil Division.
    In these various capacities Mr. Katsas argued or supervised 
many of the leading civil appeals brought by or against the 
United States government for almost 8 years, including the 
noted case of Ashcroft v. Iqbal. Prior to his government 
service Mr. Katsas was a partner in the Washington office of 
the law firm Jones Day, and he will return to that firm in 
November.
    John Vail is an original member of the Center for 
Constitutional Litigation, where he is vice president and 
senior litigation counsel. He represents clients in 
constitutional litigation in state and Federal appellate 
courts, including the Supreme Court of the United States.
    Mr. Vail spent 17 years doing legal-aid work, concentrating 
in major litigation to advance rights. Mr. Vail teaches public 
interest lawyering at the George Washington University School 
of Law.
    Debo Adegbile is the director of litigation at the NAACP 
Legal Defense and Educational Fund, or LDF. We are pleased to 
welcome him back to the Committee, as he recently appeared 
before us at our last hearing, in fact. As the director of 
litigation for LDF, Mr. Adegbile advances civil rights 
interests before the Federal courts.
    Before taking his current position, Mr. Adegbile served as 
the associate director of litigation and director of the 
political participation group for LDF. He was a litigation 
associate at the law firm of Paul, Weiss, Rifkind, Wharton & 
Garrison prior to joining the LDF.
    I am pleased to welcome all of you. Your written 
statements, in their entirety, will be made part of the record. 
I would ask each of you to summarize your testimony in 5 
minutes or less.
    To help you stay within that time there is a timing light 
at your table. When 1 minute remains the light will switch from 
green to yellow, and then to red when the 5 minutes are up.
    Before we begin it is customary for the Committee to swear 
in its witnesses. If you would please stand and raise your 
right hand to take the oath?
    [Witnesses sworn.]
    Mr. Nadler. Thank you. Let the record reflect that the 
witnesses answered in the affirmative. You may be seated.
    I now recognize Professor Miller.

           TESTIMONY OF ARTHUR R. MILLER, PROFESSOR, 
               NEW YORK UNIVERSITY SCHOOL OF LAW

    Mr. Miller. Thank you, Mr. Chairman, Members of the 
Subcommittee.
    I have spent my entire life with the Federal Rules of Civil 
Procedure, and I firmly believe that these two cases by the 
Supreme Court represent a philosophical sea change in American 
civil litigation. When the rule-makers formulated these rules 
they had centuries of prior procedural history to reflect on, 
but they decided to do something very American.
    They decided that all citizens should have access--that 
wonderful word access that you have used--American citizens 
should have access to the Federal courts. They should all have 
a day in court, a meaningful day in court, a day in court that 
some would argue was guaranteed by the due process clause of 
the United States Constitution, that they should not be 
derailed by procedural booby traps and tricks and 
technicalities, and that the gold standard was that day in 
court to be followed by a jury trial, as guaranteed to them by 
the Seventh Amendment to the United States Constitution.
    The rules reflected those values. The rules provided, after 
centuries of experience, that pleadings are traps, that 
pleadings are access barriers.
    The notion was, simplify pleadings and get to the facts, 
get to the relevant information through the discovery process. 
That system worked for many, many, many years. Conley and 
Gibson is a reflection of that. All the Supreme Court decisions 
between Conley and Twombly reflected a commitment to that 
system. Twombly and Iqbal deviate.
    We are blessed in this country by having been given an 
enormous array of rights and protections, largely through the 
good work of this Congress. We now have effective legislation 
on discrimination based on race, gender, disability, and my 
personal favorite, age. We now have an enormous consumer 
protection, safety protection, environmental protection, 
financial protection. Those rights are meaningless unless 
citizens can go to court and enforce those rights.
    But here is the rub: As we have learned over the last 
decade, life is complex. The best forms of misconduct are 
insidious, silent, unseen. This is about Global Crossing, 
Enron, Madoff, credit default swaps, derivatives, auction rate 
securities.
    There is no way the average American, even if armed with 
effective counsel, can plead to satisfy Twombly and Iqbal. That 
is why, as Mr. Johnson has said, hundreds of cases are being 
dismissed daily since these two decisions.
    Everything today is characterized as formulaic, conclusory, 
cryptic, generalized, or bare. Unless citizens can move past 
the pleadings to get to the discovery regime, that day in court 
is absolutely meaningless and the private rights provided by 
this Congress to citizens are useless.
    It is said that Twombly and Iqbal are justified because it 
costs a lot, because there is abuse or frivolous litigation. 
Those were assumptions by the Supreme Court starting in Twombly 
based on little or nothing.
    We have no empiric evidence on abuse or frivolousness, and 
ironically, recent study, preliminary, by the Federal Judicial 
Center, says the costs of litigation are far less than what we 
thought they were and that the true heavy costs are really in a 
small band of cases. Yet Twombly and Iqbal speak to every case 
on the Federal docket, be it a one-person civil rights action 
or a mega-antitrust action.
    Legislation is needed to bring us back to where we were, 
and as Mr. Johnson said, let the rule-making process, based on 
thorough evaluation and study, move forward. But right now we 
have a sense of urgency. Things are happening.
    [The prepared statement of Mr. Miller follows:]

                 Prepared Statement of Arthur R. Miller















































                               __________

    Mr. Nadler. Thank you, sir.
    Mr. Katsas is recognized for 5 minutes.

   TESTIMONY OF GREGORY C. KATSAS, FORMER ASSISTANT ATTORNEY 
      GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Katsas. Thank you.
    Chairman Nadler, Ranking Member Sensenbrenner, Members of 
the Subcommittee, thank you for the opportunity to testify 
about Twombly and Iqbal. As explained in my written testimony, 
I believe that those cases are correctly decided and are 
consistent with decades of prior precedent.
    In essence, Twombly and Iqbal hold that a proper pleading 
requires some minimal factual allegations that support at least 
a reasonable inference of liability. In that respect, Twombly 
and Iqbal simply follow and apply settled propositions of 
black-letter law that courts, even on a motion to dismiss, are 
not bound to accept conclusory allegations or to draw 
unwarranted or unreasonable inferences from the allegations 
actually made, and that discovery is not appropriate for 
fishing expeditions. Dozens, if not hundreds, of cases support 
those basic propositions.
    In damages lawsuits against government officials, pleading 
rules must also take account of qualified immunity. The Supreme 
Court has held that qualified immunity protects government 
officials from the burdens of pre-trial discovery, which, it 
has said, can be peculiarly disruptive of effective government. 
Such disruption is most apparent where, as in Iqbal itself, the 
litigation is conducted against high-ranking officials and 
involves conduct undertaken during a war or other national 
security emergency.
    Imagine the paralyzing effect if any of the thousands of 
detainees currently held by our military could seek damages and 
discovery from the Secretary of Defense merely by alleging in a 
complaint that their detention was motivated by religious 
animus in which the secretary was complicit. That astounding 
result is precisely what Iqbal forecloses, so overruling that 
decision would vastly increase the personal legal exposure of 
those called upon to prosecute two ongoing wars abroad and to 
defend the Nation at home.
    In less dramatic contexts as well, Twombly and Iqbal 
protect defendants from being unfairly subjected to the burdens 
of discovery in cases likely devoid of merit. That is no small 
consideration. Electronic discovery costs typically run into 
the millions of dollars and often into the tens of millions of 
dollars in antitrust and other complex cases.
    Defendants subjected to these costs cannot recover their 
expenses even if the plaintiff's case turns out to be 
meritless. So if weak cases are routinely allowed to proceed to 
discovery, defendants would have no choice but to settle rather 
than incur the substantial and non-reimbursable costs of 
discovery.
    Finally, Twombly and Iqbal have not resulted in the 
wholesale dismissal of meritorious cases. Judge Mark Kravitz, 
who chairs the Civil Rules Committee responsible for proposing 
amendments to the Federal Rules of Civil Procedure has 
explained that his committee is actively following litigation 
of motions to dismiss after Twombly and Iqbal, that judges have 
taken a nuanced view of those decisions, and that neither 
decision has proven to be a blockbuster in its practical 
impact. Consistent with that conclusion, courts have 
characterized pleading burdens, even after Iqbal, as minimal, 
and they still routinely deny motions to dismiss, including in 
cases involving alleged unlawful discrimination.
    Let me close just by correcting one misstatement of fact 
that is floating in the record in this case. Mr. Johnson, you 
stated that Iqbal has resulted in the dismissal of over 1,600 
cases. That statement is an incorrect conclusion cited from a 
September article in the National Law Journal. What that 
National Law Journal actually states is that Iqbal has been 
cited by courts 1,600 times.
    Thank you very much.
    [The prepared statement of Mr. Katsas follows:]

                Prepared Statement of Gregory G. Katsas





















































                               __________
    Mr. Nadler. Thank you.
    Mr. Vail?

              TESTIMONY OF JOHN VAIL, CENTER FOR 
                   CONSTITUTIONAL LITIGATION

    Mr. Vail. I am John Vail, of Washington. I thank you, Mr. 
Chair, for inviting me today, and Members of the Subcommittee. 
I am happy to be here.
    Let me pick up on exactly that point, because as of last 
week the number of citations to Iqbal was actually 2,700, as of 
last Friday. And indeed, not all of those cases would have 
survived under old pleading standards--you have to understand 
the Federal caseload a little bit to understand that--but we 
are talking about significant cases that are getting dismissed 
because of Iqbal and Twombly, and you have judges noting that.
    I think one of the examples there is the Ocasio Hernandez 
case from Puerto Rico, and that is a case of political 
discrimination. That is a fundamental kind of case that we want 
people to be able to bring. This democracy does not function in 
the face of that kind of discrimination. And the judge in that 
case noted that not only was that case being dismissed, but he 
noted that it would be very difficult from here on out even for 
experienced counsel to meet some of the pleading requirements 
under Iqbal in that kind of case.
    Antitrust cases--I cited in my testimony Tam Travel and 
Judge Merritt's dissent in that case. Now, Judge Merritt shares 
the view that Iqbal and Twombly might not be sea change 
standards. Again, I disagree with that, as does Professor 
Miller.
    But look at what--the kinds of cases you have there. I have 
cited you an antitrust case where it has been dismissed for 
want of pleading about conspiracy when the defendant in the 
case was already in the amnesty program of the Department of 
Justice and had admitted to conspiracy.
    I think employment discrimination--I have cited you 
Fletcher v. Phillip Morris USA, where in that cases there was 
an African American male who had worked for 17 years for 
Phillip Morris as a middle manager, and all of a sudden 
something happened. He pleaded eight specific instances of 
discrimination in that case and he pleaded that there was 
something unique about his exit interview in that case, and the 
judge said that that--and therefore there was something 
different. The judge said that that was a conclusory 
allegation; a conclusory allegation that there was disparate 
treatment against an African American male.
    You know, that doesn't wash. That doesn't wash with me at 
all.
    I cited you McTernan v. City of York. This is a fundamental 
civil right; this is about abortion protestors who are--want to 
demonstrate in the City of York, Pennsylvania, and there the 
court says--now this case had some other problems, but I want 
to focus on this one piece where he said that the plaintiffs 
had said that they were freely exercising their religious 
beliefs and that their religion required them to take these 
actions. And the court said--and they said--the court faulted 
them for not saying that they were treated differently than 
others.
    Well, now, I don't know who else in York would have been 
looking to protest at the Planned Parenthood Clinic other than 
people with a certain set of religious beliefs. So what do you 
do? Do you get off scot-free for the first instance of 
discrimination in each case?
    A case you are all familiar with--this is about, you know, 
what standards do you need to get into at least some discovery? 
And one of the evils--one of the biggest of evils of Iqbal is 
that it completely rejects case management of discovery. 
Something that judges are good at--they are very good at 
cabining discovery.
    The Lily Ledbetter case--I think you are all familiar with 
the Lily Ledbetter case. Lily Ledbetter was told by people that 
other people were being paid differently from her. Could she 
allege--did she know that the company was doing that? Did she 
really know that?
    There is a question of what she could allege and whether 
her complaint would survive under the Iqbal standard. But 
clearly she knew what she wanted to look for in that case, and 
in that case with just the minimal discovery--targeted 
discovery--you could answer the key question that was out there 
without depriving someone of their right of access to court.
    [The prepared statement of Mr. Vail follows:]

                    Prepared Statement of John Vail

































                               __________

    Mr. Nadler. Thank you.
    Mr. Adegbile, you are recognized for 5 minutes.

                TESTIMONY OF DEBO P. ADEGBILE, 
            NAACP LEGAL DEFENSE AND EDUCATIONAL FUND

    Mr. Adegbile. Good afternoon, Chairman Nadler, Ranking 
Member Sensenbrenner, other Members of the Committee. It is 
good to be with you again this afternoon.
    Today I will touch briefly on three topics relative to the 
question at hand with respect to Iqbal. The first is to put the 
Conley decision that we have heard a bit about today in 
context, because I think it is important. The second is to note 
some of the substantial difficulties that Iqbal and Twombly are 
presenting for civil rights plaintiffs. And finally, I will 
conclude with some observations about why the heightened 
standard of pleading impairs the principles of justice and 
equality that are inherent in our Constitution and our civil 
rights laws.
    We often hear about the fair notice aspect of the seminal 
Conley decision. Every lawyer learns about it in civil 
procedure. Often edited out of our civil procedure casebooks is 
the specific context in which that case arose.
    Conley, of course, is a civil rights decision. It was a 
decision that arose in the context of African American railroad 
workers having been dismissed from their positions so that they 
could be replaced by White railroad workers, and the claim in 
that case was that the railroad workers wanted their union to 
represent them and advocate for them and the union refused.
    I think it is important to put the case in that context, 
where the fair notice rule came to have some resonance, because 
in that case the defendants tried to suggest that somehow the 
pleading was fatal. They tried to insulate and inoculate 
invidious discrimination through pleading gymnastics, and the 
court rejected it and that is the rule that we have had for 
some 50 years. So let us start with that context.
    Moving on to how Iqbal and Twombly are affecting civil 
rights plaintiffs today, I think we need to know something 
about the way in which discrimination is practiced today. We 
are all happy that most of the discrimination that we see--
well, let me rephrase that; it was a little inartful--none of 
us are happy to have any discrimination, but the major 
discrimination that we see today typically, though not always, 
takes a different form than discrimination a generation or two 
ago.
    In my testimony I cite a Third Circuit case that very 
accurately describes the different nature of discrimination 
today. Last week we heard about a justice of the peace in 
Louisiana who was engaged in some of the Jim Crow-era type of 
discrimination, not agreeing to marry people for an invidious 
racial reason. Most cases do not arise in that context.
    The civil rights laws have educated would-be discriminators 
to conceal their conduct, to achieve their end through a 
surreptitious means, and that makes it very difficult for civil 
rights plaintiffs to begin, at the outset, with smoking guns 
and to have those types of allegations in their pleadings. That 
discovery makes the difference. It is the way we use to 
separate the legitimate cases from those that are 
unmeritorious.
    And with the plausibility standard that we see under Iqbal, 
it allows judges to bring to bear their background and common 
experience. But as we know, the background and experience of 
our judges varies widely. Some judges may see the same facts 
and believe it to be plausible; others may look at a set of 
facts and believe it to be implausible based on their life 
experience.
    The way we have addressed this issue in our justice system 
is to allow the facts to speak and not the preconceptions of 
judges. I think that is a much better rule and something that 
we should return to.
    In my written testimony I point to a very important example 
in which a judge acknowledged that his initial preconception in 
a seminal desegregation case--his initial view was wrong and 
the facts changed his mind. Members of this Committee know the 
story of how Congressman Henry Hyde changed his mind when the 
1982 reauthorization of the Voting Rights Act was in play by 
virtue of the facts and the testimony that he saw.
    Finally, I will conclude by talking about the costs that 
are in play in the Iqbal decision. Any rule has costs on one 
side or another, but what the Supreme Court has done in Iqbal 
is to completely discount the costs of closing the door--
closing off access to justice--in favor of concerns about 
litigation and discovery abuse.
    Civil rights and litigation are a means of enforcing our 
highest promises. They are a policing mechanism that are 
important and vital to a democracy. If that door to justice is 
closed off in a way that is too blunt an instrument we lose 
something as a society, and it would be my advice to this 
Committee that they very carefully--that you all very carefully 
look at the cases that we have cited in our testimony to see 
the ways in which the door to justice is being closed even now, 
as we speak.
    Thank you.
    [The prepared statement of Mr. Adegbile follows:]

                 Prepared Statement of Debo P. Adegbile





























                               __________
    Mr. Nadler. And thank you.
    And before I start the questioning, I want to make one 
comment on what Mr. Adegbile just said. We talked about judges, 
and even Mr. Hyde--I shouldn't say even--and Mr. Hyde changing 
his mind on the basis of facts or the basis of evidence. I once 
praised an official on the State of New York about 20 years ago 
by saying that--publicly--that he was the only high official in 
the executive branch of government that I had ever seen to 
change his mind on the basis of evidence. I hope that that is 
not the case with judges and with members of the legislative 
branch.
    I thank the gentleman, and I will now recognize myself to 
begin the questioning for 5 minutes, but before I do that--
before I begin the questioning of our witnesses I want to 
welcome a new Member of our Subcommittee to the Subcommittee, 
the gentlewoman from California, Judy Chu.
    I will now recognize myself for 5 minutes.
    First of all, Professor Miller, Mr. Katsas was--Katsas?
    Mr. Katsas. Katsas.
    Mr. Nadler. Katsas. Mr. Katsas--excuse me--Mr. Katsas was 
saying that Conley--not Conley--that Ashcroft and Iqbal, 
rather, that Iqbal and Twombly were well in the tradition of 
prior case law, that this didn't really change all that much, 
didn't change the standards. When he said that I saw you were 
sort of shaking your head. Could you comment on that?
    Mr. Miller. In my judgment, Mr. Chairman, nothing could be 
further from the truth. In the formative years of Conley, the 
Federal rules, I would say, perhaps until the mid-1980's, there 
was what we used to call a ``bend-over-backwards'' rule. The 
court understood that the motion to dismiss should be granted 
rarely, that the court should bend over backwards to allow the 
plaintiff to move forward.
    Sure there were cases that wouldn't even satisfy Conley, 
but everything in the complaint was read in the light most 
favorable to the plaintiff. All inferences were drawn in favor 
of the plaintiff.
    My reading of the post-Iqbal cases is that is all gone. 
Complaints are now being read with the use of these epithets, 
like conclusory, against the plaintiff. The bend-over-backwards 
rule is gone.
    In addition, when my great friend, Justice Ginsburg, said 
``Iqbal has messed up the Federal rules,'' she knows what she 
is talking about as a former procedure teacher. Not only is 
rule 8 messed up, but rule 12, dealing with the motion to 
dismiss, is messed up. That motion, tracing it back 400 years, 
Mr. Chairman, through common law pleading, was a legal 
sufficiency motion.
    Chairman Nadler gave me a dirty look. I would be thrown out 
of court on a 12(b)(6) motion to dismiss because there is no 
such thing as a dirty-look tort.
    But that is not what is happening now. Under Iqbal, the 
judge is appraising facts: Is it plausible? The judge is using 
common sense. It----
    Mr. Nadler. Before any evidence is entered into----
    Mr. Miller. That is not in the complaint.
    Mr. Nadler. Thank you. Let me ask you a further question. 
In your written testimony you say: The tightening of standards 
for access to courts, and particularly for access to juries, is 
part of a trend that countermands more long-term historical 
trends in favor of access. For at least 20 years power has been 
transferred from juries to judges.
    Could you briefly--and please briefly, because I have a few 
more questions--state how the Iqbal case helps transfer power 
from juries to judges?
    Mr. Miller. One of the things I try to get across in the 
written statement is that starting in 1986, when the Supreme 
Court empowered district judges to dismiss, via the summary 
judgment motion, again using that curious word ``plausible,'' 
what we have seen is a constant movement of case disposition 
earlier and earlier and earlier in the life of the case, 
further and further away from trial, denying the jury trial 
right.
    Now we are at Genesis. The motion to dismiss is at the 
courthouse door. The only thing left for, let us call them 
conservative forces or case disposition forces, to do is shoot 
plaintiffs before they come into the courthouse. I think this 
is a terrible trend.
    Mr. Nadler. Thank you. Let me ask you one final question.
    As may be evident, I agree with you, and we are looking at 
a legislative response. In July, Senator Specter introduced 
legislation in response to the Iqbal decision. We are, as you 
know--as I announced before--working on a House bill.
    What do you think a proper response to Iqbal should look 
like--a legislative response?
    Mr. Miller. I think the Congress should voice the view that 
what has been happening is inconsistent with the notion of 
using civil litigation not simply for compensation but for the 
enforcement of public policy, all the statutes I referred to 
before. That should be the sense of Congress.
    The sense of Congress also should be, there is a certain--
--
    Mr. Nadler. Do you think it should be limited to a sense of 
Congress or an amendment to the Federal Rules?
    Mr. Miller. I think a direct amendment to the Federal Rules 
is within Congress' power. There is no question about that----
    Mr. Nadler. That is what we are thinking of doing.
    Mr. Miller [continuing]. But having been a reporter to the 
civil committee, having been a member of the civil committee, I 
believe in the rule-making process. I think--not to suggest 
Congress should pass the buck--but as Mr. Johnson said, I think 
Congress should say, ``Time out. Let us restore life as it was 
before 2007 and turn it over to the advisory.''
    Mr. Nadler. Thank you.
    Let me just ask Mr. Vail and Mr. Adegbile quickly, do you 
think Congress should do as Professor Miller just said----
    Mr. Vail. Yes.*
---------------------------------------------------------------------------
    *See page 141 for letter clarifying this response.
---------------------------------------------------------------------------
    Mr. Nadler [continuing]. Or should we simply try to 
legislate and restore the old rule by legislation by specifying 
it so the courts know what we mean and can't interpret it 
differently? Mr. Vail and Mr. Adegbile?
    Mr. Vail. I think you should follow Professor Miller's 
advice. I have a great respect for the rule-making policies--
capability of the judicial conference, and one of the problems 
with Iqbal and Twombly is that they create a great deal of 
uncertainty. We are all out there looking at what these courts 
might do----
    Mr. Nadler. Mr. Adegbile?
    Mr. Adegbile. Yes. I agree.
    Mr. Nadler. You agree with which?
    Mr. Adegbile. Well, I understand them to be saying the same 
thing----
    Mr. Nadler. Okay.
    Mr. Adegbile [continuing]. That Congress should restore the 
law and then the rule-making committee----
    Mr. Nadler. No, no, no. The question I am asking is, should 
Congress restore the law, and of course the rule-making 
committee can do everything else, you know, whatever it wants 
after that? Or should Congress say, ``Gee, we don't like it. 
Rules Committee, see if you can restore the law''?
    Mr. Adegbile. I think Congress should restore the law.
    Mr. Nadler. Okay.
    Mr. Adegbile. It is too urgent not to.
    Mr. Nadler. I thank you.
    My time is expired, and I now recognize the gentleman from 
Georgia for 5 minutes.
    Mr. Franks. I guess I am now from Georgia. That is all 
right; it is a great state.
    Mr. Johnson. No doubt about that.
    Mr. Nadler. I am sorry, Mr. Franks.
    First of all, the gentleman is not from Georgia. I 
recognize this gentleman from Georgia for 5 minutes. He wanted 
to pass for a while.
    Mr. Johnson. All right. Thank you, Mr. Chairman.
    As a result of the heightened pleading standard, we are now 
beginning to see fewer instances of wrongful conduct being 
addressed, and whether or not it is 1,600 or 2,700 cases or 
more, it has only been about 5 months and a week since the 
decision came down, and just one case being thrown out due to 
insufficiency of pleadings, I would suggest to you, is justice 
denied.
    And the bottom line is that the Supreme Court knows what 
the impact of this decision is and what it will have in the 
future, and that is the reason why they changed 50 years of 
law. And even defense lawyers have called the Iqbal decision an 
unexpected gift for the business community.
    Mr. Katsas, do you consider it fair to impose a standard 
that skips discover, evidentiary hearings, summary judgment, 
and trials altogether, be they bench or jury, and instead have 
judges deciding cases solely on which written presentation they 
determine is most persuasive to them?
    Mr. Katsas. I think it is fair to ask a plaintiff, before 
invoking the mechanisms of discovery, to allege facts that, if 
true, support a reasonable inference of liability. That is my 
reading of what those decisions do, and I think that is what 
prior law did. And I don't think that is unfair.
    Mr. Johnson. Well, let me ask you this: Suppose a woman was 
fired due to illegal gender discrimination. Even if she has all 
the facts in her complaint, couldn't there still be a plausible 
alternative explanation for why she was fired which could get 
her complaint dismissed? And shouldn't--I will ask you that 
question.
    Mr. Katsas. I think Judge Gertner had it right when she 
said the alternative--the complaint gets dismissed on 
plausibility only if the alternative explanation sort of 
overwhelms the inference of discrimination----
    Mr. Johnson. But that is up to the judge, not a jury, and 
not during a trial, and also prior to discovery. Is that not 
correct?
    Mr. Katsas. Sure. The judge has to make a very limited 
threshold determination whether the facts alleged reasonably 
support an inference of liability. In the kind of case you 
posit, where that plaintiff puts the facts in the complaint, I 
think the complaint would very likely survive.
    Let us talk about the----
    Mr. Johnson. Well, I mean, since May 18th 1,600--2,700 
cases have been dismissed----
    Mr. Katsas. No, sir.
    Mr. Johnson [continuing]. Well, you know, you can argue 
about the findings of a hired gun group or not, it doesn't 
matter. And I am not alleging that this newsletter that you 
talked about is a hired gun, but I will say, the bottom line 
is, you know, how can we enable plaintiffs to be able to come 
into court and have their concerns addressed with all of the 
processes that have been in place for so long? And, you know, 
why did the Supreme Court need to change that?
    I will throw it open to Mr. Vail.
    Mr. Vail. You know, Mr. Johnson, one of the things I wanted 
to address, if I may, is this discovery issue. There are a tiny 
number of cases in which it is a big issue, but the 
preliminary--it is in my testimony, but from the preliminary 
numbers we have the average costs--the median costs--in closed 
Federal cases are $15,000 for the plaintiff and $20,000 for the 
defendant, including attorneys' fees, according to the Federal 
Judicial Center.
    The huge discovery costs are chimerical. They can be 
controlled in other ways that I am happy to talk about further, 
if anybody wants to hear.
    Mr. Nadler. Thank you. The gentleman's time is expired.
    The gentleman from Arizona is recognized for 5 minutes.
    Mr. Franks. Well, thank you, Mr. Chairman.
    And thank all of you for being here.
    Mr. Katsas, you know, as I understand today, a lawsuit 
filed in Federal court is subject to a standard which the 
complaint, or the plaintiff, must plausibly give rise to an 
entitlement of relief, and I am just wondering, what is the 
support in prior law for that plausibility requirement? Can you 
explain that to us?
    Mr. Katsas. Sure. Many sources. Number one, as I said in my 
opening, it is black letter law that courts can read--
adjudicating motions to dismiss are not bound to make 
unsupportable conclusions or unwarranted inferences from the 
facts alleged. Give the plaintiff a lot of leeway but not 
unlimited leeway with respect to facts alleged.
    Second, in the context of antitrust litigation, which is a 
good example of complex litigation, I have cited many cases in 
my opening--in my written statement where courts apply that 
principle to dismiss cases that they find implausible and they 
say, ``Before we are going to turn this case into a 
multimillion-dollar discovery proceeding we are going to make 
sure that there is some reasonable reason to think the case has 
merit.''
    Third, in cases against government officials where 
qualified immunity comes into play, the Supreme Court, prior to 
Twombly and Iqbal, said a plaintiff, in order to overcome the 
immunity defense, must allege specific non-conclusory 
allegations that demonstrate a defendant violated clearly 
established law. It seems to me implicit in that is some 
plausibility requirement.
    Mr. Franks. Yes.
    Mr. Katsas. Finally, Professor Miller's treatise has a 
statement in it that a complaint must do more than state facts 
that merely create a suspicion of liability. I think that is 
absolutely right; that is the very statement that Twombly 
quoted in support of the plausibility requirement.
    Mr. Franks. Yes. Well, that makes sense. You have got to 
make a case a little bit, huh?
    Well, it seems to me that relaxing the pleading standards 
could subject a lot of high-level government officials, you 
know, to really virtually thousands of meritless lawsuits, I 
mean, even from terrorists, that would be just out of handling 
their national security matters that they had a duty to do, and 
that these allegations could be based on nothing more than a--
sort of a formulaic recitation of the elements. And--at least a 
constitutional claim--and I guess I am wondering what you think 
would have happened if the Court had not held as it did in 
Iqbal.
    Mr. Katsas. Look at the facts of Iqbal itself. The attorney 
general of the United States and the director of the FBI were 
responding to what one of the second circuit judges aptly 
described as a national security emergency, unprecedented in 
the history of this country. They acted to protect the country 
against further attacks, and part of that response involved 
detaining people suspected of connection to terrorism under the 
immigration laws.
    If Iqbal had come out the other way, any one of those 
detainees could sue the attorney general of the United States 
and the director of the FBI merely by alleging that I, the 
detainee, was picked up because of my religion and the attorney 
general was involved in that decision. Judge Cabranes described 
that kind of argument as a template for litigation against the 
government, even as to high-level officials, even in national 
security emergencies.
    Mr. Franks. Yes. Sounds like a recipe for total chaos.
    I guess I would like to give you a chance to--you didn't 
get the opportunity to deal with the ``1,600 subject cases,'' 
and if you could clear that up for us?
    Mr. Katsas. Yes. Whether it is 1,600 or 2,700, whatever the 
number is, that number is simply the number of times the Iqbal 
decision has been cited by any court in any context. It could 
be a decision that has nothing to do with the motion to dismiss 
that just cites Iqbal in passing; it could be decisions that 
apply Iqbal in order to deny motions to dismiss.
    You have no idea from that statistic how many cases are 
being dismissed, and you have no--of that number of cases. Yyou 
have no idea how many would have been dismissed under pre-Iqbal 
standards, even if you assume that Iqbal somehow ratcheted up 
the standard. So it doesn't seem to me probative of anything.
    Mr. Franks. Yes. Well, thank you for your service, sir.
    And thank you, Mr. Chairman.
    Mr. Nadler. Thank you.
    I now recognize the gentlelady from California for 5 
minutes.
    Ms. Chu. Mr. Katsas, I understand you represented the 
government in Ashcroft v. Iqbal, and in that case the 
government essentially argued that the case should be dismissed 
because Mr. Iqbal had no proof that Attorney General Ashcroft 
and FBI Director Mueller were personally involved in the arrest 
or detention.
    I want to ask whether you believe that we should be able to 
hold high-level officials responsible for the conduct of the 
men and women who work under them and in what circumstances?
    Mr. Katsas. I think that before a plaintiff can subject an 
attorney general to the burdens of discovery it is incumbent 
upon that plaintiff to allege facts supporting a plausible 
inference that the attorney general was involved in illegal 
conduct.
    Let me talk for a minute about the Elian Gonzalez 
litigation against Attorney General Janet Reno. I was involved 
in that case as well. That is a great example of politically 
motivated litigation against a high-ranking and visible 
government official who makes a tough and controversial call to 
do something that some people don't like.
    The plaintiffs in that case said there were Fourth 
Amendment violations in executing a search warrant. The court 
assumed that to be true. And the plaintiff said, ``And the 
Attorney General supervised the raid.'' Well, the Eleventh 
Circuit said, ``That is not good enough. You really need to 
allege that the attorney general was responsible for gassing 
people and breaking down doors and breaking furniture for no 
reason.''
    That seems to me a very sound principle to protect high-
level government officials in any Administration from being 
called into court, subjected to discovery, and having their 
qualified immunity overridden on a whim.
    Ms. Chu. Let me ask this: I think the issue of supervisoral 
liability is at the heart of this case. The government's brief 
conceded high-ranking officials can be held liable if they have 
actual knowledge of the assertedly discriminatory nature and 
they were deliberately indifferent to the discrimination. 
However, the Court took a different view by declaring that such 
officials can be held accountable if they themselves violate 
the law, regardless of the breadth of their knowledge of the 
depth of the indifference.
    Does the Court's decision in this case change our ability 
to hold government officials responsible for the actions of 
their agency and employees? Doesn't it directly contradict the 
government's criteria on how it holds it and its officials 
accountable?
    Mr. Katsas. That part of the Iqbal ruling is, of course, 
separate from the pleading questions that we are focused on 
today. But to answer your question, no, it seems to me right.
    It seems to me that where the underlying constitutional 
violation itself requires bad motive as an essential element, 
you shouldn't have a lesser standard of liability for the 
attorney general than you have for the line officer. So if the 
line officer can be held responsible only based on bad motive, 
it seems to me the attorney general should have the same 
standard applied to him or her.
    Ms. Chu. Well, then let me ask a different question, Mr. 
Katsas. It seems unfair to me to place such a significant 
burden on the plaintiff who often, in discrimination cases, are 
already at a significant disadvantage. The courts are now 
asking a party of unequal bargaining weight to know a lot about 
the other side before the game has even begun.
    Can you describe how a plaintiff facing a case like this 
would realistically go about gathering this additional 
information outside of the discovery process?
    Mr. Katsas. Well, I think in the typical discrimination 
case I would point you to the Supreme Court's decision in 
Swierkiewicz, which ticks off many ways in which a 
discrimination plaintiff can plead a case of discrimination. 
The plaintiff can allege facts that support an inference of 
discrimination under a case called McDonnell Douglas. That is 
one option.
    A plaintiff can allege facts that suggest direct evidence 
of discrimination. That is another option. Or a third option, 
which the court approved in Swierkiewicz, is the plaintiff 
simply gives a statement of the facts which support a 
reasonable allegation of discrimination.
    That particular case, you had a 53-year-old person of, I 
believe it was Hungarian background, replaced by a much younger 
person of French background, alleged those facts, gave the time 
and place, alleged that the plaintiff was more qualified based 
on 25 years of experience, and alleged facts suggesting some 
animus on the part of the supervisor who said something to the 
effect of, ``I need new blood in here.''
    And the Supreme Court said regardless of all the 
technicalities of employment discrimination law under McDonnell 
Douglas and so forth, that--those allegations are good enough. 
It is a short and plain statement; it alleges the specific 
facts; and it supports a reasonable inference of liability.
    Now, to come back to the hypothetical about--or, the actual 
case of a detainee picked up in a national security emergency 
in response to terrorist attacks carried out by al-Qaeda 
saying, ``Well, I am just being detained because of my religion 
and the attorney general is not trying to protect the country 
but to discriminate against Muslims,'' I think that would be 
and should be a hard case to allege for good reason.
    Ms. Chu. Thank you.
    I yield back.
    Mr. Nadler. Thank you.
    And I now recognize for 5 minutes the gentleman from Iowa.
    Mr. King. Thank you, Mr. Chairman.
    I thank the witnesses for your testimony.
    And as I listen to the testimony and review it this 
question comes to me, and I would direct it first, I think, to 
Professor Miller, and that is this question that hangs out 
here, and I think not very well elaborated on or examined, the 
question of profiling. And, you know, is it ever 
constitutionally or legally permissible to profile an 
individual in the course of law enforcement within the 
continental United States, Professor?
    Mr. Miller. I am not by any means knowledgeable about 
criminal law. That is a civil liberties issue that I generally 
leave to my criminal law colleagues. My understanding--and it 
is nothing more than an understanding--is that a certain level 
of profiling is allowed in certain circumstances.
    Mr. King. Thank you, Professor.
    Mr. Katsas?
    Mr. Katsas. I would agree with that. The classic case is 
police are investigating someone--police are investigating a 
crime. The witness identifies the race or sex or age of the 
perpetrator and the police focus their efforts on people 
satisfying that description. I think the September 11th case 
fits that paradigm given the religion and religiously motivated 
animus of the people who attacked us.
    Mr. King. And would you broaden that response to include 
classes of people as well as individuals specifically?
    Mr. Katsas. Depending on the circumstances, yes.
    Mr. King. Okay. And then those circumstances, to explore 
this thought a little further with the case of Iqbal, his 
allegation that he was singled out or discriminated against 
because of race, religion, national origin, et cetera, those 
circumstances under his incarceration you would support as 
being constitutionally protected as far as the law enforcement 
would be on the constitutional side of it?
    Mr. Katsas. I think what I would say is if, as seems 
overwhelmingly likely to me, what the government was doing was 
trying to investigate the attacks and find people linked to the 
attacks, and that investigation had a disparate impact on Arab 
Muslims, that is constitutional.
    And if someone in Iqbal's situation wants to say that, 
``No. Notwithstanding this overwhelming national emergency and 
notwithstanding the obvious reason for being concerned about 
people who fit the description of the attackers, I was 
discriminated against unfairly, unconstitutionally,'' it is 
incumbent on him to allege some facts that plausibly support 
that. I----
    Mr. Miller. But Mr. King, there is no way that someone in 
Iqbal's position could know the motivation of the A.G. or the 
FBI director. And the notion that the government--and we are 
now talking about thousands of cases not as dramatic as Iqbal--
that the government can get a complete pass without ever 
rescinding with a simple affidavit or a simple deposition, 
pinpoint discovery is all that you need to determine the 
plausibility----
    Mr. King. But let me follow up, Professor, with that. And 
you have opened this up voluntarily. But I would press into 
this point, then, about, what about the costs of diversion? 
What about the consequences of this impending bill that may 
well be dropped here in the House side? Doesn't it open up the 
door for an endless series of litigation against government 
officials and doesn't that put a chilling effect on the 
activity of our government officials?
    And doesn't it put not only the servants of the Department 
of Justice and the department, perhaps, beyond that at 
jeopardy, doesn't it also put the American people at jeopardy, 
potentially? Have you considered the implications of that?
    Mr. Miller. With respect, Congressman, those are 
assumptions.
    Mr. King. Working with some assumptions in this underlying 
case----
    Mr. Miller. I have great faith in the Federal judiciary. 
They know how to manage cases; they know how to skin-down 
cases; they know how to get to the nub of cases. But I don't 
think we want to live in a land in which every government 
official asserting that kind of national emergency or immediacy 
can get a pass----
    Mr. King. And I would point out, though, that I have not 
been aware of evidence on the assumptions on the part of Iqbal 
himself. I mean, there have been allegations, but not evidence 
of those allegations that he has made. So we are working with 
some assumptions, and I would like us to look at the legitimacy 
of real legitimate law enforcement profiling.
    And I will just say in conclusion that I believe I have 
been profiled when I got on board on El Al Airlines, and they 
looked at me and asked me about three questions and concluded I 
didn't fit the profile of somebody they needed to be worried 
about and said, ``Get on board.'' So I think it works in a plus 
and a minus.
    I thank the witnesses, and I would yield back to the 
Chairman, and I thank you.
    Mr. Nadler. I thank the gentleman.
    And before we conclude, I just saw at the conclusion of Ms. 
Chu's question Professor Miller looked like he wanted to say 
something. Do you remember what that was?
    Mr. Miller. Excuse me? I didn't hear.
    Mr. Nadler. I said at the conclusion of Ms. Chu's 
questioning you looked like you wanted to add something, but I 
recognized Mr. King.
    Mr. Miller. Oh, I was simply going to make mention that the 
reference to the Swierkiewicz case is perversely interesting 
because at least one United States court of appeals of the 
Third Circuit has said Swierkiewicz is dead as a result of 
Iqbal.
    Mr. Nadler. Okay. Since we are not going to do the 
discussion of Swierkiewicz, I thank the witnesses. Without 
objection all Members will have 5 legislative days to submit to 
the Chair additional written questions for the witnesses, which 
we will forward, and ask the witnesses to respond as promptly 
as they can so that their answers may be made part of the 
record. Without objection, all Members will have 5 legislative 
days to submit any additional materials for inclusion in the 
record.
    For the edification of the Members we have 7 minutes 
remaining on the vote on the floor.
    I thank the witnesses, I thank the Members, and with that 
this hearing is adjourned.
    [Whereupon, at 3:48 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
  in Congress from the State of Michigan, Chairman, Committee on the 
Judiciary, and Member, Subcommittee on the Constitution, Civil Rights, 
                          and Civil Liberties

    In May of this year, the Supreme Court issued its decision in 
Ashcroft v. Iqbal. The ramifications of this case are enormous.
    As a result of Iqbal, a plaintiff must overcome almost 
insurmountable obstacles to open the courthouse door, which explains 
the title of today's hearing.
    The Court's decision to abandon more than half a century of 
established civil litigation practice has left thousands of individuals 
without the right to judicial redress in the federal court system.
    Today's hearing provides an important opportunity to closely 
examine the implications of this decision. I am particularly interested 
in looking at three issues presented by Iqbal.
    First, Iqbal is yet another example of the Supreme Court slowly, 
but strategically, chipping away at the rights and protections afforded 
by statute and under the Constitution.
    As is the case with Iqbal, the Court has been rendering decisions 
that make it harder for people to enforce their rights in court. The 
progress that had been made to open the courthouse doors to everyone is 
slowly being undone.
    As with many of the Court's decisions over the last few decades, 
the ruling in Iqbal at first blush appears to be narrow in scope and 
technical in application.
    But Iqbal and the Court's other rulings have had broad implications 
by systematically and significantly changing our laws' guarantees. As 
the New York Times observed, Iqbal may be one of the most consequential 
decisions of the last term even though it got little attention.
    This under the radar, but highly consequential, description of 
Iqbal brings me to my second point. The impact of this case has been 
enormous and cannot be understated. As a direct result of Iqbal, 
thousands of litigants have been denied access to justice.
    In reliance on Iqbal, it is likely that more than 1,500 federal 
district cases and 100 federal appellate cases have been tossed out of 
court. By making it harder for a complaint to withstand a motion to 
dismiss, civil plaintiffs now find themselves without remedy in the 
federal courts.
    For the past 50 years, it was rare that a motion to dismiss for 
failure to state a claim was granted. Unless it appeared ``beyond doubt 
that the plaintiff [could] prove no set of facts in support of his 
claim that would entitle him to relief,'' a person was entitled to his 
or her day in court.
    Disturbingly, it seems as if this standard that was first 
articulated in 1957 in Conley v. Gibson is no more.
    As a result of Iqbal, a court must conduct a two-part examination. 
First, it must examine the complaint's allegations of law and fact, and 
consider only those allegations that amount to fact. Second, the court 
must make a ``plausibility'' determination.
    It is insufficient that a complaint contain well-stated facts. 
Rather, the fact scenario must be ``plausible,'' and not the result of 
``more likely explanations.''
    In reaching this decision, a court uses its ``judicial experience 
and common sense.'' Leading civil procedure experts say that this 
equates to an extremely unreasonable amount of judicial discretion.
    So my third and final point is that the Congress is now tasked with 
fixing Iqbal. In the same way that we have responded to other 
undesirable Supreme Court decisions, it appears that a legislative 
response is warranted. At our last hearing, which discussed other 
questionable Supreme Court decisions, Chairman Nadler noted our efforts 
in working on a response to Iqbal.
    I am committed to crafting such a response. Accordingly, I hope the 
witnesses at today's hearing will share their insights and guidance on 
what that legislative response should be.
    A lot of people are relying on Congress to rollback Iqbal, a 
decision that has substantially changed the rights of civil litigants. 
Today's hearing continues that process of restoring justice in the 
courts. I know that it will greatly contribute toward our better 
understanding of the decision, its adverse impact on our Nation's 
system of justice, and possible legislative responses.
    I thank Chairman Nadler for convening this very important hearing.

                                

 Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a 
   Representative in Congress from the State of Georgia, and Member, 
  Subcommittee on the Constitution, Civil Rights, and Civil Liberties

    Thank you, Chairman Nadler, for holding this important oversight 
hearing.
    Access to the courts and the ability for claims to be heard by a 
judge or jury are fundamental to our system of justice. For over 50 
years, courts have used the Conley standard to ensure that plaintiffs 
had the opportunity to present their case to a federal judge, even when 
they did not yet have the full set of facts.
    As Chairman of the Subcommittee on Courts and Competition Policy, I 
believe it is extremely important that defendants be given wide 
latitude for pleading.
    Details about the wrongful conduct are frequently in the hands of 
the defendants alone and it is only through the discovery process that 
plaintiffs are able to identify non-public information that would 
support their claims.
    With the Twombly and Iqbal decisions, pleading standards are set so 
high that Plaintiffs are now frequently denied access to the courts.
    In fact, since the Iqbal decision earlier this year, over 1600 
district and appellate cases have resulted in dismissal due to 
insufficient pleadings. This is simply unacceptable.
    Another problem with the Iqbal decision is that the Supreme Court 
bypassed the federal judiciary by amending the Federal Rules of Civil 
Procedure without going through the process laid out in the Rules 
Enabling Act.
    It is the role of the Judicial Conference of the United States to 
change the Federal Rules though a deliberative procedure.
    By bypassing the Judicial Conference's process, the Supreme Court 
may very well have, in the words of Justice Ginsburg, ``messed up the 
Federal Rules.''
    I look forward to joining Chairman Nadler as an original cosponsor 
of his Notice Pleading legislation. I plan to hold a legislative 
hearing and mark-up this important bill in the Courts Subcommittee once 
the bill is introduced.
    Thank you.

                                










                                




















































                                










                                








                                





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*See footnote, page 94 for clarification of this letter.

                                









                                
















                                









                                








                                










                                





                                



                                 
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