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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 
(II) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

MIKE QUIGLEY, Illinois 

JUDY CHU, California 

LUIS V. GUTIERREZ, Illinois 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

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 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

SHEILA JACKSON LEE, Texas 

JUDY CHU, California 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 
(III) 

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 

(1) 

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 
2 

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. 
3 

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 pos-
4 

sible, 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. 
5 

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. 
6 

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 
7 

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:] 
8 

PREPARED STATEMENT OF ARTHUR R. MILLER
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Mr. NADLER. Thank you, sir. 

Mr. Katsas is recognized for 5 minutes. 
31 

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 
32 

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:] 
33 

PREPARED STATEMENT OF GREGORY G. KATSAS
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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 
60 

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:] 
61 

PREPARED STATEMENT OF JOHN VAIL
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Mr. NADLER. Thank you. 

Mr. Adegbile, you are recognized for 5 minutes. 
77 

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 experi-
78 

ence. 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:] 
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PREPARED STATEMENT OF DEBO P. ADEGBILE
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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 
94 

*See page 141 for letter clarifying this response. 

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.* 

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 
95 

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 
96 

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 
97 

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 
98 

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 respon-
99 

sible 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? 
100 

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. 
101 

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.] 

(103) 

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 JUDI- CIARY, 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 
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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. 

f 

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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