Will Twombly rescue John Ashcroft from paying damages?

The U.S. Supreme Court yesterday granted the government’s petition for writ of certiorari in Ashcroft v. Iqbal, No. 07-1015 (U.S. June 16, 2008), to consider (Blawgletter thinks) both of the questions that the petition posed:


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

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

News reports on the grant played up the second question — the one having to do with whether former Attorney General John Ashcroft and other high officials may constitutionally suffer civil judgment for subordinates’ heinous conduct. 

That issue interests us, too, but something else caught our eye back when the Second Circuit upheld the claims in June 2007.  As we said then:

Second Circuit Ponders Twombly Aftermath in 9/11 Aftermath Case

Yesterday, the Second Circuit became the first U.S. court of appeals to expound on how the decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), has changed pleading requirements.  The court summarized:

After careful consideration of the Court’s opinion [in Twombly] and the conflicting signals from it that we have identified, we believe the Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible "plausibility standard," which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.

Iqbal v. Hasty, No. 05-5768, slip op. at 33 (2d Cir. June 14, 2007) (emphasis in original).  Circuit Judge Jon O. Newman wrote the court’s opinion, which Blagletter highly recommends for its style and clarity.  Circuit Judge Cabranes wrote a concurring opinion.

The decision in Iqbal v. Hasty concerned civil claims against federal officials high and low for harsh confinement conditions that the government imposed on persons "of high interest" after 9/11.  The plaintiff, a Muslim Pakistani, alleged constitutional and statutory violations arising from savage beatings, frequent cavity searches (not in his teeth), solitary confinement, and other brutal treatment during his detention in a Brooklyn federal prison.  The Second Circuit largely sustained his claims despite the officials’ immunity defenses.

A glance at the government’s cert. petition confirms the importance of Twombly to the case.  It says that "the result reached by the court of appeals is inconsistent with a proper understanding of this Court’s decision[]" in Twombly.

So perhaps in the 2008 Term we will get some elaboration on the True Meaning of Twombly.  Not to mention more clarity on accountability — or not — for harsh treatment of detainees in the post-9/11 world.

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