Procedural Barriers to Court

  • April 14, 2011
    Habeas Corpus after 9/11
    Confronting America's New Global Detention System
    Jonathan Hafetz

    By Jonathan Hafetz, a law professor at Seton Hall Law School who has litigated a number of leading national security habeas corpus cases.  

    Following his inauguration, President Obama ordered the closure of the U.S. prison at Guantanamo Bay within one year. More than two years later, however, Obama’s plan to close Guantanamo is in shambles. More than 170 prisoners remain at Guantanamo, and new legislation makes it extremely difficult to transfer additional prisoners from the naval base. Defense Secretary Robert Gates recently called the prospects for closure “very, very low,” and the administration is pressing ahead with new military commission trials at the base. In many ways, the United States is further from closing Guantanamo now than it was after Obama’s inauguration.

    Guantanamo has always been more than a prison. It is also the symbol of a new, alternative detention system that denies prisoners the full protections of America’s criminal justice system. Guantanamo’s continued existence reflects not merely America’s failure to close this notorious prison, but its acceptance of the larger system the prison embodies.

    Even as Obama vowed to close Guantanamo, he indicated that he would continue to use “military commissions,” pledging to reform the fatally flawed war crimes tribunals rather than end them. The administration’s decision to abandon the federal criminal prosecution of Khalid Shaikh Mohammed and four other alleged 9/11 plotters in favor of military commissions demonstrates the power this alternative system exerts over U.S. counter-terrorism policy. Obama has likewise endorsed another key feature of Guantanamo: the indefinite detention of some terrorism suspects without trial. His recent executive order creating a new review board to periodically examine their cases demonstrates how deeply this practice has become institutionalized. The question, in short, is not whether the post-9/11 detention system will continue (it will), but what form it will take and how broadly it will sweep.

  • December 31, 2010

    The U.S. Court of Appeals for the Seventh Circuit ruled earlier this week that a lower federal court judge correctly held that a complaint alleging a conspiracy to fix prices of text message services was plausible enough for litigation to proceed.

    Verizon Wireless and other providers of text messaging services, citing the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, had urged the federal court in Chicago to find that the litigation’s underlying complaints against the wireless communications companies were insufficient and therefore should be dismissed.

    Seventh Circuit Judge Richard A. Posner concluded that the “district judge was right to rule that the second amended complaint provides a sufficiently plausible case of price fixing to warrant allowing the plaintiffs to proceed to discovery.”

    Although the plaintiffs’ second complaint survived a Twombly challenge, Posner noted that Twombly was “designed to spare defendants the expense of responding to bulky, burdensome discovery unless the complaint provides enough information to enable an inference that the suit has sufficient merit to warrant putting the defendant to the burden of responding to at least a limited discovery demand.”

    Twombly and its successor, Ashcroft v. Iqbal, have been criticized by civil rights attorneys, law makers, and legal scholars as creating much more stringent pleading standards than intended by Congress. In its Iqbal decision, the Supreme Court held that for lawsuits to survive motions to dismiss, plaintiffs must provide much more specific factual information. The high court in Iqbal also stated that judges have greater discretion in dismissing complaints before the discovery stage of litigation. The Federal Rules of Civil Procedure created in 1938 had only required that plaintiffs file a complaint including a “short and plain” statement about why they were entitled to relief.

    Earlier this year, two civil rights attorneys argued in an ACS Issue Brief that the Supreme Court decisions in Twombly and Iqbal have undermined the “deliberative and inclusive process” that Congress established. For more discussion of the ramifications of Twombly and Iqbal, watch video of an ACS symposium, available here.

  • December 6, 2010

    Editor's note: The post below has been modified to make clear that Wayne County Circuit Judge David Allen was never nominated to a seat on the federal bench, but was recommended by Michigan Sens. Carl Levin and Debbie Stabenow to President Obama.  

    A Michigan state court judge who was recommended to a seat on the federal bench almost two years ago has withdrawn his name from consideration, citing excessive delay in moving the process forward that had put both his personal life and his career on hold, The Detroit News reports.

    In a letter to Michigan Sens. Carl Levin and Debbie Stabenow announcing his withdrawal, Wayne County Circuit Judge David Allen called the system of nomination and confirmation to the federal bench "broken."

    "While I appreciate and am honored by your joint recommendation to the president for this position, the almost two year delay (with the prospect of further delay in a much changed Congress come January) in the process has been long enough," Allen wrote. "I am ready to get back to my personal life and respected state court career, both of which have been on hold far too long."

  • November 24, 2010

    Senate obstruction of judicial nominees, two Supreme Court vacancies, public apathy and competing priorities all have contributed to the slow pace at which federal court seats have been filled during the Obama administration, experts explained during a lively ACS panel discussion on the judicial selection and confirmation process.

    As the number of vacancies on the federal courts rises to an alarming level, the risk of failing to fill these empty seats is that "people will lose confidence not only in the justice system, but in Congress' ability to support it," said American Bar Association President Elect Wm. T. (Bill) Robinson III.

    Panelists discussed the process of filling a seat on the federal bench, from the way in which state nominating commissions affect the vetting process in particular states, to the President's deferral to Senators from a given state on that state's nominees. Each of these steps presents an opportunity for delay, the panelists explained, but once a candidate is nominated by the president, it is Senate confirmation that stands in a nominee's way.

    During the Obama administration, the Senate has confirmed nominees to the district court at a much slower rate than occurred under President George Bush, said Brookings Institution Visiting Fellow Russell Wheeler.

    "It's true that in the lame-duck session of Congress in 2004, the Senate confirmed 17 Bush nominees," Wheeler explained. "Now, I guess it's theoretically possible for the Senate to confirm some more Obama nominees in the lame duck, but I certainly wouldn't hold my breath to see that happen."

    Robert Raben, president and founder of The Raben Group and an ACS Board Member, said the Democrats have done an "inadequate job" of creating a constituency that cares about judges.

    "I don't think Republicans are by their nature more obstructionist on this issue. I think they're better at it," Raben said. "For some of them it's more passionate, and the Democratic opposition to their opposition is not that strong.

    "There isn't a coherent mass of political effort on the Democratic side saying judges matter," Raben added.

    Robinson agreed with this sentiment, explaining that the ABA is strengthening its efforts to educate the public about the importance of judges.

    "When delays of this magnitude occur, those who really suffer are the people," Robinson said.

    Watch the full video below, and visit to learn more about the judicial nominations process and track developments.

  • November 10, 2010
    Guest Post

    By Suzette M. Malveaux, an associate professor of law at Catholic University's Columbus School of Law. The following is a modified version of the introduction to Malveaux's ACS Issue Brief, "Salvaging Civil Rights Claims: How Plausibility Discovery Can Help Restore Federal Court Access After Twombly and Iqbal," which was released today. The Issue Brief will be a topic of discussion during the National Civil Rights Access to Justice Forum, which will begin at Emory University School of Law in Atlanta tomorrow evening and continue Friday, Nov. 12. Click here for more information about the event and to register.
    For over half a century, federal courts have opened their doors to all plaintiffs who could craft a complaint that provided basic notice to the defendant of their claims. This threshold, called "notice pleading," was established by the Supreme Court in Conley v. Gibson - a civil rights case brought by African-American railway workers challenging their union for failing to fairly represent their interests without regard to race. This seminal case established the rule that a complaint should only be dismissed if the plaintiff could prove "no set of facts in support of his claim that would entitle him to relief." This made it easy for a plaintiff to initiate a lawsuit because the system was designed to test the merits of the plaintiff's case later on, once both sides had the chance to collect evidence through the discovery process and to use other pre-trial procedures. It was important not to let procedural gamesmanship bar ordinary people from seeking justice and relief through the courts.

    Anchored in these principles, the Supreme Court consistently rejected efforts by the lower courts to raise the pleading standard, particularly in civil rights cases. The Court remained steadfast in enforcing Conley's "no set of facts" standard, only requiring plaintiffs to set forth a "short and plain statement of the claim" that would give the defendant notice, as stated in Rule 8 of the Federal Rules of Civil Procedure. It was important to give civil rights complainants, like everyone else, their day in court and let their cases be decided on the merits.

    After over half a century, however, this generous pleading standard upon which courts had historically relied has come to an abrupt halt. In Bell Atlantic Corp. v. Twombly (an antitrust class action by consumers against Internet and telephone service providers), the Supreme Court "retired" Conley's permissive "no set of facts" language. Instead of requiring plaintiffs to put forth facts showing their claims were possible, they now had to put forth facts showing their claims were plausible. In Ashcroft v. Iqbal (a constitutional civil rights case by Javaid Iqbal against top government officials), the Court clarified that the new standard applies to all civil actions, including discrimination claims. And the way a judge would determine if something is plausible would be to use his "judicial experience and common sense."