The following column, featuring a selected petition up for consideration at the Justices' private conference on June 12, appears in today's edition of Legal Times (available to subscribers here). To see the full list of "petitions to watch" for Thursday's conference, click here.

Before Sept. 11, 2001, Javaid Iqbal was known to his customers on Long Island as simply "the cable guy."

But following his arrest on credit card fraud charges in the months after the attacks, officials at the Metropolitan Detention Center in Brooklyn, N.Y., classified Iqbal as a detainee of "high interest" to the FBI's ongoing investigation into the attacks.

Along with hundreds of Muslims and Arab men arrested after 9/11 on criminal and immigration charges, Iqbal was held for months in solitary confinement in the prison's maximum security wing, where he was allegedly subject to gross mistreatment.

Following deportation to his native Pakistan, Iqbal filed a federal suit against not only prison officials but FBI Director Robert Mueller and former Attorney General John Ashcroft"”whom he claimed designed, or at least approved of, a policy of segregating Arab and Muslim detainees from the general prison population until individually cleared of suspicion by the FBI.

Over fierce objections from the government, a panel of the U.S. Court of Appeals for the 2nd Circuit allowed the suit to proceed to discovery last June. At the justices' private conference on June 12, the Supreme Court will consider whether to grant certiorari in the government's appeal of the ruling. A decision could be announced as soon as June 16. (The petition is No. 07-1015, Ashcroft v. Iqbal.)

Agents of the FBI and the former Immigration and Naturalization Service arrested Iqbal in November 2001. Early the following year, officials transferred him to the maximum security unit, where he remained for nearly six months before being transferred back to the general prison population.

During his confinement, Iqbal alleged, prison staffers brutally beat him on two occasions; subjected him to daily strip and body-cavity searches; left cell lights on nearly 24 hours a day; turned on heat in the summer and air conditioning in the winter; and often confiscated his Koran and forbade his participation in Friday prayers.

Alleging numerous constitutional and civil rights violations, Iqbal filed his suit in mid-2004 in the U.S. District Court for the Eastern District of New York. All defendants sought to have the case dismissed, arguing both that the accusations were insufficiently specific and that, as government officials, they were entitled to qualified immunity"”the legal doctrine shielding officials from money damages over any conduct falling short of a clear constitutional violation.

District Judge John Gleeson denied the majority of the defendants' claims, however, and in June 2007 the U.S. Court of Appeals for the 2nd Circuit affirmed. Dismissing most of the government's objections, the panel found the complaint satisfactorily alleged Ashcroft and Mueller had personally condoned the FBI policy at issue.

Writing for the majority, Judge Jon Newman found that, if true, Iqbal's allegations of ethnic and religious discrimination amounted to conduct that "any reasonably competent officer would understand to have been illegal under prior case law." Newman emphasized, however, that on remand the district court should prevent burdensome discovery and give the officials "ample opportunity" to seek summary judgment. (Prior to the 2nd Circuit's decision, the U.S. government settled claims on behalf of all defendants with a second plaintiff, Ehad Elmaghraby, an Egyptian Muslim, for $300,000.)

The government's petition for certiorari"”filed by outgoing Solicitor General Paul Clement"”contends the 2nd Circuit allowed the suit to proceed based on nothing more than the mere possibility that Mueller and Ashcroft were involved in formulating the policy in question.

The government contends that by failing to state when the alleged conduct took place, who exactly was involved or where it occurred, Iqbal's allegations are insufficiently specific under the Supreme Court's decision last term in Bell Atlantic v. Twombly (2007), which dismissed a complaint against a horde of telecommunications companies based on bare allegations of collusion under the Sherman Antitrust Act.

If anything, the petition argues, Iqbal's complaint suggests a lack of personal involvement, as it alleges no communication between Ashcroft or Mueller and lower-ranking FBI officials or awareness of the actions occurring at the detention center. Clement further maintains that four other federal appellate courts have dismissed complaints against high-ranking government officials based solely on "conclusory allegations""”including a suit by the family of Cuban youngster Elian Gonzalez against former Attorney General Janet Reno and other high-ranking officials in the Clinton Justice Department.

With regard to qualified immunity, Clement argues that courts should be particularly careful in weighing claims by high-ranking officials, whose role as supervisors could expose them to liability for actions taken by lower-ranking employees, and whose political opponents may seek to distract them by filing suit.

Opposing certiorari, Iqbal claims the petition, at its heart, contends nothing more than an error in applying the federal rule of civil procedure governing pleading standards, which courts have long held to require only providing "fair notice" of the plaintiff's claim.

The brief, filed by Elizabeth Koob of Koob & Magoolaghan in Yonkers, N.Y., says allowing the suit to proceed to discovery is even more appropriate following a status conference in late April, where an attorney for another defendant revealed the existence of a memo Ashcroft sent to subordinates outlining how the classification system for Arab and Muslim detainees would be carried out. (Clement denies the existence of the alleged memo.)

In any event, Koob argues that qualified immunity defenses cannot always be resolved by the time defendants file a motion to dismiss, in which case trial courts may postpone a decision until after discovery. And regardless of the standard used to review the sufficiency of a plaintiff's complaint, the risk always exists that political opponents will file vexatious litigation. "”Ben Winograd

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Posted in Ashcroft, Former ATT’Y Gen. v. Iqbal, Uncategorized