By James Pfander. 114 Penn St. L. Rev. ___. *(forthcoming in Iqbal Symposium Issue)
This author welcomes responses to this abstract and the upcoming article. The author may be contacted at:
- Phone: (312) 503-1325
- E-mail: j-pfander@law.northwestern.edu
Abstract:
Widely noted for the pleading revolution it furthers at the district court level, the Supreme Court’s decision in Ashcroft v. Iqbal also makes important changes in the way federal appellate courts will resolve qualified immunity issues.[1] In brief, Iqbal holds that the issue of qualified immunity – something that the Court regarded as an affirmative defense only a generation ago – would now be treated as a matter on which the plaintiff would bear the burden of relatively specific pleading.[2] This empowers the government to invoke qualified immunity by way of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. What’s more, Iqbal adopts a broad interpretation of the collateral order doctrine that will allow the government to seek immediate appellate review of any denial of a qualified immunity defense. While the Court had previously applied the collateral order doctrine to qualified immunity,[3] the Iqbal decision extends the doctrine to fact-bound determinations that the Court had once regarded as improper subjects of interlocutory review.
This essay explores this important change in the structure of appellate review. One can view the decision as doubly revolutionary: it alters the rules of pleading to require greater detail at the same time it expands appellate review to ensure that the federal appellate courts will pass on all Rule 12(b)(6) motions to dismiss on qualified immunity grounds. When coupled with the recent decision in Pearson v. Callahan, which enables the lower courts to dispose of qualified immunity issues without passing on the merits of constitutional claims,[4] Iqbal portends an important restriction on the viability of constitutional tort claims under Bivens and 42 U.S.C. § 1983.[5]
[1] See Ashcroft v. Iqbal, 556 U.S. __ (2009)
[2] See, e.g., Gomez v. Toledo, 446 U.S. 635 (1980).
[3] See Mitchell v. Forsyth, 471 U.S. 511 (1985).
[4] See Pearson v. Callahan, 555 U.S. __ (2009).
[5] See Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971) (recognizing an implied federal right of action for damages); Monroe v. Pape, 365 U.S. 167 (1961) (concluding that section 1983 authorizes individual to sue officer of Chicago police department for constitutional tort damages).