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Monday, May 18, 2009

Iqbal and the death of notice pleading: Part I

Having now read Iqbal, it's a doozy ("breathtaking" as one poster to the civ pro listserv put it) in many ways and in many areas of law (all of which are of interest to me). Many doctrinal points were killed off or dramatically altered today. I am going to look at them in a series of posts in the next couple of days.

First, this case killed off the principle, long repeated in notice pleading, that a court on a 12(b)(6) motion to dismiss must draw all reasonable inferences from the facts pled in favor of the plaintiff. And it partially killed off the notion of taking facts pled as true.

The majority worked in two steps. First, it decided that two key paragraphs were too conclusory (containing nothing more than "bare assertions") to be given a presumption of truth. This took out the allegations It then took the other two paragraphs and accepted them as true. But it found on its own an "obvious alternative explanation" that was a "more likely" explanation for the post-9/11 detention policies that rendered those policies not unconstitutional--namely, that the United States had been attacked by an organization led by, and composed of, Arab-Muslims, thus the detention policies were "justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts."

The whole idea of "plausibility" established in Twombly was inconsistent with the idea of drawing reasonable inferences for the plaintiff. Drawing all reasonable inferences for the plaintiff means that if allegations taken as true reasonably could go either way, the court should adopt the plaintiff-favorable version and let a jury decide. Plausibility does the opposite--if facts could go either way and there is a lawful explanation for the behavior, the complaint is insufficient. Thus, in Twombly, where the parallel conduct alleged might be consistent with lawful activity or might be unlawful under the antitrust laws (when combined with agreement and intent), the mere allegation of parallel conduct was insufficient because the claim was not plausible. Ben Spencer described these as "neutral" allegations that are insufficient to state a claim under Twombly.

Iqbal takes that to a new level. The majority went out of its way to find a lawful explanation that was, in fact, inconsistent with what was pled. This was one of Justice Souter's key points in dissent: Taking all the allegations made, the plaintiff alleged that he had been arrested and uniquely detained because of his race, religion, and national original. There is no way, if those allegations are true, that the plaintiff's rights were not violated. But the majority ignored what was pled and simply explained away the policy.

The majority then concluded that its explanation for the detention policies was "more likely," thus rendering the alternative explanation (a constitutional violation) not plausible and not sufficient to state a claim. Of course, the evaluation of facts as more or less likely (such as the explanation for a policy decision and resulting governmental conduct) really ought to be for a jury. So Iqbal, even more than Twombly, Suja Thomas' arguments that 12(b)(6), as now understood, invades the jury's fact-finding provenance, in violation of the Seventh Amendment, is beginning to look very strong.

Posted by Howard Wasserman on May 18, 2009 at 04:48 PM in Civil Procedure, Howard Wasserman | Permalink


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I'll have to read this very soon, obviously. But what I've been telling my students for the last two years is that "plausible" means "more than extremely unlikely." But from what you're saying above, it looks like it means "more probable than not." Form 11 is getting harder and harder to explain.

There's another explanation, but not a very good one -- which is that large telephone companies and high-ranking government officials get the benefit of the doubt. Prison doctors, not so much.

Posted by: Bruce Boyden | May 18, 2009 6:19:24 PM

I think the explanation in the second ¶ may be on to something. Although I am not sure where it puts large corporations when they are accused not of conspiring to restrain trade, but of firing old Hungarians in favor of young Frenchmen. And yes, Form 11 is getting harder to take seriously.

Posted by: Howard Wasserman | May 18, 2009 7:21:59 PM

This is one of the most significant decisions the Supreme Court has ever issued. There are so many problems with Justice Kennedy's opinion, it's hard to know where to start. First, it's quite clear that the idiot law clerk who drafted this opinion either doesn't understand the Federal Rules of Civil Procedure or simply finds them quite inconvenient for certain large, institutional defendants. More problematic is that Justice Kennedy appears completely unaware that all reasonable inferences must be drawn in favor of the NON-MOVING party on a motion to dismiss. Just because he can speculate on all of the lawful reasons for why defendants might have acted in the manner they did doesn't mean that defendants in fact acted in that manner. If this were the answer to a civil procedure final -- say 2 weeks ago - the student would have inevitably be given a failing grade.

If the majority was so concerned with shielding high-ranking government officials from litigation to ensure they could "vigorously prosecute their duties," then the Court should have fashioned a rule that no Bivens claim lies against such officials (cabinent-level I suppose), i.e., that these officials enjoy absolute (rather than qualified) immunity when faced with allegations like Iqbal's.

And here I thought that Justice Kennedy would limit himself to mangling constitutional provisions -- Section 5 of the 14th Amendment and 11th Amendment for starters - because statutes lack the necessary grandeur or gravitas for a man of his stature. But wrong I was -- how simply wonderful that he has now lent his midas touch to the Federal Rules of Civil Procedure.

Posted by: Alex | May 18, 2009 8:42:17 PM

I (used to?) introduce pleading to my students by talking about the difficulty of proving antitrust conspiracies and, esp., discrimination in the absence of notice pleading and discovery, given that the necessary evidence is usually in the file cabinets, needing to be stitched together. In most cases, how can one possibly have enough evidence of these allegations at the pleading stage? And what were the subjects of Twombly and now Iqbal? Hmmm..., I think this is a substantive attack on civil rights and discrimination claims, in the guise of a pleading case. The stunning slash and burn job on Bivens in the first part of Kennedy's opinion seems consistent with that conclusion, I think.

Posted by: Vladimir | May 18, 2009 8:49:21 PM

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