By Robert Barnes
Washington Post Staff Writer
Tuesday, May 19, 2009
The Supreme Court ruled yesterday that former attorney general John D. Ashcroft and FBI Director Robert S. Mueller III may not be sued by a Pakistani man who was seized in the United States after the 2001 terrorist attacks and who alleged harsh treatment because of his religion and ethnicity.
The court ruled 5 to 4 that the top officials were not liable for the allegedly discriminatory actions of their subordinates unless they had ordered the measures. The decision affects similar lawsuits filed by Arab Muslims picked up after the attacks, and the court split along familiar ideological lines. Justice Anthony M. Kennedy sided with the conservatives and wrote the opinion.
In a separate decision, the court ruled that women who worked before 1979 for companies whose maternity leave policies meant lower pension payments cannot sue under current laws that make such policies illegal. In a case involving AT&T, the court ruled 7 to 2 that such policies were "bona fide" at the time and that women may not challenge them retroactively.
The suit against Ashcroft and Mueller was brought by Javaid Iqbal, a New York cable installer who was arrested shortly after the Sept. 11, 2001, attacks.
Iqbal was held in solitary confinement in a section of a Brooklyn prison known as Admax-Shu, for "administrative maximum special housing unit," which the Justice Department's inspector general singled out for its harsh treatment of prisoners. Iqbal said that he was subjected to numerous beatings and daily body-cavity searches and that he lost 40 pounds during his time in jail.
He was eventually convicted of document fraud and deported to Pakistan, but was cleared of any involvement in terrorism.
Iqbal's case names prison guards, FBI agents, the prison warden and others, including Ashcroft, who was attorney general at the time. Iqbal says policies formulated by Ashcroft and Mueller singled him out as a suspect of "high interest" solely because of his nationality and religion.
The U.S. Court of Appeals for the 2nd Circuit in New York decided it was at least "plausible" that Ashcroft and Mueller were responsible for, or knew about, the discriminatory actions Iqbal alleges, which would not be covered by the immunity that government officials normally receive for official actions.
The appellate court said the suit could proceed with gathering evidence from the lower-level officials cited in the case and then a judge could decide whether there was reason to keep the two top officials in the suit.
But Kennedy said that the decision was wrong, and that Iqbal had no plausible claims that Ashcroft and Mueller knew of or put in place a discriminatory policy.
Iqbal's assertions "amount to nothing more than a formulaic recitation of the elements of a constitutional discrimination claim," Kennedy wrote. He said it was logical that the largest law enforcement investigation in the nation's history focused on Arab Muslims because of the identities of the Sept. 11 attackers.
"It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link 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," he wrote.
Similarly, it was not discriminatory that Iqbal and others were detained in a maximum-security prison, Kennedy said. "All it 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 the suspects could be cleared of terrorist activity."
Kennedy, joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., said that Iqbal's "account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some government actors."
Iqbal's attorney, Alexander Reinert, a professor at the Benjamin N. Cardozo School of Law, said he would try to amend the allegations against Ashcroft and Mueller to meet the court's guidelines.
But Justice David H. Souter, writing for the dissenters, said Iqbal's claims had been specific enough to allow the case to continue.
"Iqbal does not say merely that Ashcroft was the architect of some amorphous discrimination, or that Mueller was instrumental in some ill-defined constitutional violation; he alleges that they helped to create the discriminatory policy he has described," Souter wrote.
Souter said that even though Ashcroft and Mueller had conceded that the suit could go forward if Iqbal could prove they knew of the allegedly discriminatory actions and allowed them to happen, the majority went further to insulate public officials from civil liability.
The sole exception to the rule that the allegations be merely plausible, Souter said, "lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to Pluto, or experiences in time travel. That is not what we have here."
The case is Ashcroft v. Iqbal.
In the maternity case, Souter wrote for the majority in overturning a lower court ruling that said the decades-old maternity leaves should count in determining pensions.
Four AT&T employees, including Noreen Hulteen, who took maternity leave between 1968 and 1976, sued the company to get that leave time credited toward their pensions. At the time, the company used to count pregnancy leave as "personal" and said the time out of work did not count toward seniority for pension purposes.
But it was not until 1979 that the Pregnancy Discrimination Act, which barred companies from treating pregnancy differently from other disability leaves in determining pensions, went into effect.
"A seniority system does not necessarily violate the statute when it gives current effect to such rules that operated before the PDA," Souter wrote.
The court's lone female member, Justice Ruth Bader Ginsburg, dissented.
Hulteen and the other women, Ginsburg wrote, will receive "for the rest of their lives, lower pension benefits than colleagues who worked for AT&T no longer than they did."
She lamented that "certain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned restrictions on a woman's place among paid workers and active citizens."
The case is AT&T Corp. v Hulteen.