The Supreme Court may announce as early as Monday that it plans to revisit the controversial issue of pleadings standards under Rule 8 of the Federal Rules of Civil Procedure.  The Court has been under withering criticism from plaintiffs’ lawyers and legal activists since its Twombly and Iqbal decisions made it more difficult for plaintiffs to avoid dismissal of their lawsuits at the pleadings stage.

At their conference on Friday, the Justices will take up Ashcroft v. Al-Kidd, a lawsuit that seeks to hold former Attorney General of the United States John Ashcroft personally liable for a decision to place the plaintiff in custody for 15 days as a “material witness” in an ongoing anti-terrorism investigation.  The plaintiff, Abdullah Al-Kidd, alleges that prosecutors never had any intention of calling him as a witness and submitted a false affidavit for the purpose of persuading a federal magistrate to issue a material witness warrant.

The U.S. Court of Appeals for the Ninth Circuit rejected Ashcroft’s effort to dismiss the case on the pleadings.  Although there was no allegation that Ashcroft had any direct involvement in the decision to seek Al-Kidd’s detention, the appeals court held that the complaint stated a valid Fourth Amendment claim against Ashcroft because his policies arguably encouraged “line” prosecutors to misuse the material witness statute.  Ashcroft is asking the High Court to review that decision.  WLF filed a brief in support of Ashcroft’s petition and on behalf of a group of five former U.S. Attorneys General.  A WLF Legal Opinion Letter on the Ninth Circuit’s denial of rehearing en banc by former Attorney General Dick Thornburgh is here.

The Court held in Twombly and Iqbal that Rule 8 requires dismissal on the pleadings unless the complaint’s well-pled factual allegations are sufficient to make out a “plausible” claim for relief.  The Ninth Circuit sought to distinguish those two precedents by asserting that Ashcroft must have been aware of allegations that the material witness statute was being abused and thus was obligated to take “affirmative acts to supervise and correct the actions of his subordinates.”  But Ashcroft’s petition points out that the Supreme Court deemed very similar allegations insufficient to state a cause of action in Iqbal, which held that senior government officials can only be held liable for their own individual conduct, not the constitutional violations of others.  Critics of Iqbal respond that unless they can get past the pleadings stage and engage in discovery, they have no way of proving that senior officials were directly involved.

Ashcroft’s petition also raises the issue of qualified immunity.  He asserts that he is entitled to immunity because – even if it is eventually determined that his alleged conduct amounted to misuse of the material witness statute – at the time of Al-Kidd’s detention Ashcroft’s conduct did not violate any “clearly established” statutory or constitutional rights of which a “reasonable person” would have been aware.

If the Court takes any action on Ashcroft’s petition at Friday’s conference, it will announce its decision on Monday.