Iqbal, Bivens, and the Role of Judge-Made Law in Constitutional Litigation

By James E. Pfander.

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 the qualified immunity issues that arise in the course of Bivens litigation. In brief, Iqbal confirms that qualified immunity—something that the Court regarded as self-evidently an affirmative defense only a generation ago—will be treated as a matter on which the plaintiff bears the burden of relatively specific pleading. This secures the government officer’s right 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 virtually any rejected qualified immunity defense at the pleading stage. While the Court had previously applied the collateral order doctrine to orders rejecting claims of qualified immunity, the Iqbal decision extends the doctrine to fact-bound determinations about the sufficiency of allegations of fact that might be regarded as dubious candidates for interlocutory review.
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