Thursday, July 15, 2010
Making even Iqbal look good
I have not had much good to say about Iqbal, but here is one small thing to recommend it: It did not impose true heightened pleading (or pleading "with particularity" a la Rule 9) in civil rights actions and it trumps any attempts by lower courts to do so.
Pre-Twiqbal, the Supreme Court had insisted in three cases that civil rights cases were governed by the ordinary pleading rules of Rule 8(a)(2), not 9(b). Despite this insistence, the Eleventh Circuit had continued to require fact pleading in § 1983 actions against individual officers involving qualified immunity (which is to say most § 1983 damages actions). Because none of SCOTUS' pre-Iqbal decisions had involved a § 1983 claim against an individual defendant raising a defense of qualified immunity, the Eleventh Circuit had continued to insist that there was no binding precedent and it remained free to decide that the policies of qualified immunity (early rejection of nonmeritorious claims and protecting officers from protracted discovery and litigation) demand heightened pleading.
But in Randall v. Scott, the Eleventh Circuit finally got the hint that civil rights claims, even ones are not subject to special pleading beyond what goes for other claims (other than those enumerated in Rule 9(b)), which is to say they are controlled by Iqbal and its two-step approach. Of course, the circuit court went down fighting. The court did a thorough review of Iqbal and concluded that, while it involved general pleading standards under Rule 8(a)(2), it "specifically describes" those standards for actions involving a deprivation of constitutional rights in which individual officer defendants raised a qualified immunity defense on a 12(b)(6) motion. In other words, it had no choice. But you get a sense from the opinion that if Iqbal had been less explicit about its context, the Eleventh Circuit would have tried to find a way to keep its old pleading standard (unfortunately, the only possible distinction--Iqbal was a Bivens action while this is § 1983--could not pass the laugh test).
Randall confirms that Iqbal, while certainly more demanding than Conley and requiring some facts, is not the same as the heightened pleading. It requires less than what Rule 9(b) requires for fraud claims and less than the Eleventh Circuit had been requiring for civil rights claims. This hopefully sends a strong signal to lower courts in the Eleventh that Iqbal is not the strictest possible standard. Courts thus should be less demanding of § 1983 complaints, particularly those claims involving allegations of state of mind, conspiracy, and other information uniquely in the defendant's control.
Of course, even if Iqbal is not the most-demanding standard, all is not well in Mr. Randall's world. The court went on to say that his claim fails even under the less-demanding pleading standard, thus the dismissal was proper. Randall had been fired from his job as chief of staff to the DA because he ran for Chair of the County Commission against his boss' husband; Randall alleged First Amendment retaliation. The court agreed that he had some First Amendment liberty to run for office free from public retaliation (where there was no government interest for firing him), but that the right to run for office was not clearly established.
So the plaintiff still loses, although this loss can be chalked up not to problems with the pleading rules, but with the rules of qualified immunity.
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I tend to think that Rule 9 (or PSLRA) pleading is different in kind, rather than degree, from Twiqbal pleading. "Heightened" pleading under Rule 9 requires "particularity" (the who, what, when, where), whereas Twiqbal requires "plausibility." The former goes to the quantity of facts; the latter goes to the quality of them. True, if you don't meet the Twiqbal standard, you might be able to by pleading more facts--and thus both standards in practice require more fact pleading than the ond Conley standard did, and in that sense Rule 9 and Twiqbal are somewhat similar. But I do think there's a marked distinction in kind (not just degree) between them that lower courts are eliding.
Posted by: Scott Dodson | Jul 15, 2010 10:16:34 AM
I'm not clear though on how you're supposed to establish the plausibility of a claim that the judge is pre-disposed (using common "sense and judicial experience") to believe is implausible, without talking about who, what, when, and where. E.g. (as I put it to my Civ Pro class) Richard Notebaert met with the bosses of the other 6 Baby Bells in a hotel room in Kansas City on October 8, 2001, and then and there conspired to lock out CLEC competition from each of their markets.
Posted by: Bruce Boyden | Jul 15, 2010 1:30:09 PM