Widely noted for the pleading revolution it furthers at the district court level,1the Supreme Court‟s decision in Ashcroft v. Iqbal2also makes important changes in the way federal appellate courts will resolve the qualified immunity issues that arise in the course of Bivens
This Essay suggests to the contrary that Iqbal deserves to be seen as an important part of a series of judicial decisions arising out of the government’s conduct after September 11th in which courts have further narrowed the scope of the Bivens remedy in cases implicating undifferentiated national security considerations, usually (albeit not in Iqbal itself) concluding that such concerns are a “special factor counseling hesitation” in inferring a Bivens remedy. I
Iqbal raises the question of whether a showing of invidious discrimination 4 is required in a free exercise claim. The answer to this question is crucial because it could potentially cripple plaintiffs bringing free exercise claims by making them prove an extra element: the government official they are suing acted with animus as opposed to mere intent as volition or intent as awareness of consequences on religion. Although Iqbal could be interpreted as requiring all free exercise claims to show invidious discrimination, the better view of Iqbal is that it does not speak to the vast majority of free exercise claims that plaintiffs can bring against the government.
Judicial opinions construing a
We can hear the next objection coming from a mile away - "but Riegel requires a 'parallel' violation and if we can't plead it, we're out court." Right. That's not a problem with pleading, but rather a consequence of preemption. The whole purpose of preemption is to cut off claims. That's why it's so controversial. Riegel means that fewer PMA product liability claims should be brought, period. It doesn't give plaintiffs a license to allege "violations" that have no known basis in fact, and then force defendants through millions of dollars of discovery on the off-chance that something unknown might turn up. Congress has stated in the FDCA that violations are exclusively for the FDA to enforce. In cases where Riegel applies, the "plausibility" pleading standard ensures that the Supreme Court's preemption ruling is not evaded.