[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
U.S. GOVERNMENT PRINTING OFFICE
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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
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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.