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Friday, October 16, 2009

When Ricci Met Iqbal

Last term, SCOTUS held in Ricci v. DeStefano that a city could not use race-conscious measures disadvantaging non-minorities to avoid the risk of disparate impact litigation by minorities, unless the government had a strong basis to believe that it would lose that disparate-impact suit. The Court went on to say that, in that case, the City of New Haven did not have a strong basis in evidence to believe it would lose that lawsuit. Last week, an African-American firefighter who took the lieutenant's exam and was not promoted filed suit, alleging that the use of the exam violated Title VII.

So how does Ricci affect this lawsuit? As my colleague Kerri Stone pointed out, the Court's insistence of the lack of merit of this (at the time hypothetical) lawsuit was essential to SCOTUS's conclusion that the Ricci plaintiffs' rights had been violated. Ricci cannot be preclusive, since this plaintiff was not a party to the earlier case. It could be persuasive authority on the legal issue and the court must analyze the suit in light of Ricci. I would be troubled if it were binding authority on this point, since the lawsuit was entirely hypothetical and abstract at the time.

Here is where I think Iqbal and the new two-step pleading might come in. There is a good chance that, in doing the second-step plausibility analysis, the court's (discretionary) view of the plausibility of the plaintiff's allegations will be at least influenced by SCOTUS's insistence that recovery on disparate impact was so unlikely, and the city's fear of liability so misplaced, that its response to those concerns violated Title VII in the other direction. Iqbal suggests courts can decide whether a lawful explanation for the conduct alleged is as plausible as the unlawful explanation alleged and dismiss on its view of this "more plausible" lawful reason. So does the underlying conclusion in Ricci suggest this disparate-impact claim is implausible and thus insufficient under FRCP 8(a)(2)?

Posted by Howard Wasserman on October 16, 2009 at 12:17 PM in Civil Procedure, Current Affairs, Howard Wasserman, Law and Politics | Permalink


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Agree with you that a district court may well be influenced by the SCOTUS at the pleading stage. Question is whether this is a bad thing. A district court would certainly be influenced by the SCOTUS decision at the summary judgment stage. And any lawyer advising a potential plaintiff should certainly have told his client: "Well, it's not binding, but the Supreme Court has already said that you have a snowball's chance in Hell, so that is probably where your chances come out." Is there something unique about having this arise at the pleading stage?

Posted by: TJ | Oct 16, 2009 2:36:19 PM

Howard, I do have a reservation about your prediction. It is that Title VII liability here turns on a matter of law, not fact. (Am I mistaken on this?) The factual allegations here are, I presume, that there is a test used to assess promotions, and that it has a particular impact, namely, no African-Americans being promoted. I don't see any facts that are as implausible as, say, that John Ashcroft would order Arabs to be treated badly in the detention center after 9-11. In Iqbal, the charge was a conspiracy, and the documents to prove it would have to turn up, if at all, after discovery. In this case, the the facts are much clearer, and the case turns on what the facts amount to legally speaking. Again, I suspect I'm missing something here. But I'm not sure what it is at this point.



Posted by: Vladimir | Oct 16, 2009 3:08:14 PM


I believe there is something unique, because the Court ordinarily is not in the business of opining on the hypothetical merits of a future, abstract hypothetical case. That is what is so strange here. For all the Court's insistence on concreteness (it really is the only coherent explanation for standing doctrine and it formed the basis for the refusal of the last three nominees to opine on legal issues), it entirely ignored that here.


I do not know enough disparate-impact law to say whether this is purely a legal issue or whether there are some facts in play. My instinct is that there are some underlying facts--for example, whether there existed no "better" alternative evaluation method between the 60 % written exam that had the disparate impact (the plaintiffs spend several paragraphs explaining why the oral exam was better). I agree that gamesmanship with the second prong of Iqbal is more likely in cases in which intent is an element (because the allegation "D did this because of race" now gets dumped as conclusory) than in cases such as this one.

Posted by: Howard Wasserman | Oct 17, 2009 7:05:21 AM

Howard, I see the problem about the court opining about the merits of a hypothetical case, which is as you say why we have the case-or-controversy requirement. But I don't see how Iqbal affects that calculus. The Supreme Court prematurely opining on a future case is going to affect the decision in that future case, perhaps unwisely because the Justices were opining without full information, and that unwise influence is going to come through no matter which stage of the proceedings a district judge makes the real decision.

Posted by: TJ | Oct 17, 2009 4:17:08 PM

TJ: True. But Iqbal grants fairly explicit permission for courts to more closely scrutinize the complaint than under the previous regime. So while that close scrutiny might have come at summary judgment, it now can move up even further.

Posted by: Howard Wasserman | Oct 18, 2009 12:55:03 AM

Howard, we seem to be kind of talking past each other. I think we agree that there is something bad about the Supreme Court opining about a future case. Taking that as a given, is there something additionally bad about going from Conley to Iqbal. If your citation of Iqbal is simply a descriptive alert that consideration of the merits now goes from summary judgment to pleading, then we have no disagreement. But I get the impression that you think that the problem of Ricci prematurely opining on a case is somehow exacerbated by Iqbal.

That is what I don't see. Taking Ricci as a given, isn't the Iqbal regime better than the Conley regime in this case? Given the Ricci opinion, the black firefighter plaintiff is almost certainly going to lose. Under Conley, he doesn't find that out until summary judgment, leading everyone to waste money on frivolous litigation. Under Iqbal, he strikes out early, saving that expense.

Posted by: TJ | Oct 18, 2009 11:43:52 PM

I was not making any normative point, really. I am no fan of Iqbal, a point I have made clear here repeatedly. And I am no fan of the abstract opining on a hypothetical case that the Court did in Ricci. So if there was a normative point, it was about Ricci, not Iqbal. I was speaking entirely descriptively--to the extent Ricci does dictate (or at least influence) the outcome in the new lawsuit, Iqbal moves that influence up a step.

Posted by: Howard Wasserman | Oct 19, 2009 12:36:21 AM

"Ricci cannot be preclusive, since this plaintiff was not a party to the earlier case." But SCOTUS has the power of CERT-itude.

Posted by: Shag from Brookline | Oct 19, 2009 6:51:16 AM

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