Friday, March 11, 2011
Some hints (or further confusion) about the state of pleading?
File this under "Always Read the Whole Opinion Carefully": I read this week's SCOTUS decision in Skinner v. Switzer with an eye towards how I will use the case in Fed Courts (because it considers the scope of Rooker-Feldman abstention) and Civil Rights (because it considers the line between § 1983 and habeas and whether some claims seeking DNA evidence are cognizable under the former). But I missed how it may relate to Civ Pro and pleading requirements (H/T: Adam Steinman, who obviously reads more carefully than I do).
The case was decided on a 12(b)(6) motion, where the lower courts found the complaint legally insufficient because a claim for post-conviction DNA testing is not cognizable under § 1983, but must be brought under habeas. In reversing (and finding that some DNA-testing claims are cognizable under § 1983), the majority (per Justice Ginsburg) said the following about the sufficiency of the complaint:
Because this case was resolved on a motion to dismiss for failure to state a claim, the question below was “not whether [Skinner] will ultimately prevail” on his procedural due process claim, see Scheuer v. Rhodes , 416 U. S. 232, 236 (1974) , but whether his complaint was sufficient to cross the federal court’s threshold, see Swierkiewicz v. Sorema N. A. , 534 U. S. 506, 514 (2002) . Skinner’s complaint is not a model of the careful drafter’s art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible “short and plain” statement of the plaintiff’s claim, not an exposition of his legal argument. See 5 C. Wright & A. Miller, Federal Practice & Procedure §1219, pp. 277–278 (3d ed. 2004 and Supp. 2010).
Skinner stated his due process claim in a paragraph alleging that the State’s refusal “to release the biological evidence for testing … has deprived [him] of his liberty interests in utilizing state procedures to obtain reversal of his conviction and/or to obtain a pardon or reduction of his sentence … .” Complaint ¶33, App. 20–21. As earlier recounted, see supra , at 5–6, Skinner had twice requested and failed to obtain DNA testing under the only state-law procedure then available to him. See Complaint ¶¶22–31, App. 14–20. 7 At oral argument in this Court, Skinner’s counsel clarified the gist of Skinner’s due process claim: He does not challenge the prosecutor’s conduct or the decisions reached by the CCA in applying Article 64 to his motions; instead, he challenges, as denying him procedural due process, Texas’ postconviction DNA statute “as construed” by the Texas courts. Tr. of Oral Arg. 56. See also id. , at 52 (Texas courts, Skinner’s counsel argued, have “construed the statute to completely foreclose any prisoner who could have sought DNA testing prior to trial[,] but did not[,] from seeking testing” postconviction). 8
A couple things are noteworthy here. First, the Court still spoke in terms of a "plausible 'short and plain statement' statement of the plaintiff’s claim, not an exposition of his legal argument." Thus, plausibility is required, but the complaint need not lay out its complete legal theory with detail or precision. In fact, the Court here dug through the complaint to identify the "gist" of the argument from the noise that would have barred it under either Heck or robbed the court of jurisdiction under Rooker/Feldman.
Second, the Court cited Swierkiewicz, a pre-Twiqbal case that actually cited Conley and rejected a requirement of factual detail in an employment-discrimination complaint. This clarifies a point that had been somewhat unclear and had been something of a contentious point among scholars--Swierkiwicz remains good law and Twiqbal must be read in light of Swierkiwicz to form a consistent whole. Adam is one of the leading proponents of that point.
Third, the Court did not cite Twombly or Iqbal. What does that mean? Perhaps that those cases really do most of their work in certain types of cases, such as discovery-intensive/expensive cases (Skinner will not be particularly discovery-intensive). Or perhaps Twiqbal works best where the challenge is to factual sufficiency--the amount of detail in the complaint--rather than legal sufficiency. I actually think this could have some force, particuarly if (as Emily Sherwin argues) Conley itself was really about legal sufficiency. Or (although this is a longshot) perhaps it is Justice Ginsburg's way of trying to walk back Twiqbal a little bit, but in a quiet way where the pleading standard and pleading details were not at the heart of the case
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I wouldn't read much into this part of the opinion. If there's a realist reading of what's going on here, it's probably that this is a death case, not that the court is driving towards some distinction between legal and factual sufficiency.
It's also a death case that's a gigantic spear's tip . The court is trying to clear the way to make a ruling as to whether procedural due process imposes standards for post-conviction access to DNA. The Court knows that litigants absolutely need to know the answer to this question after Osborne (which slammed the door on substantive due process challenges). Iqbal and Twombly are not mentioned in the Respondent's BIO or any Amicus briefing in support thereof. That was not an issue in the Fifth Circuit.
Of course it's possible that the language turns out to have significance, or that Ginsburg is walking back Iqbal (I doubt it though). I just mean to say that I strongly doubt that this language expresses any sort of consensus by the Court on the state of the pleading requirements under those cases.
Posted by: kovarsky | Mar 11, 2011 11:55:30 AM
I have always read Iqbal and Twombly to be about the nature of the facts pled and their support/plausibility, and no about legal theories.
So I don't see this as particularly illuminating.
Posted by: Hillel Y. Levin | Mar 11, 2011 1:01:14 PM
Also, the Court's reference to Swierkiewicz was for a pretty settled proposition of law. I don't see that reference as resolving any of the tension (conflict?) between the core of Swierkiewicz and Twombly/Iqbal.
Posted by: Scott Dodson | Mar 11, 2011 2:17:53 PM
The cynic in me notes that Ginsburg is the only remaining justice to have dissented from Twombly.
Posted by: TJ | Mar 11, 2011 3:18:15 PM
At first it seemed significant, but on reflection the drafting process probably went something like this: Ginsburg drafts the majority opinion, cites Swierkiewicz, does not cite Iqbal or Twombly. Is somebody really going to hold up the opinion because they want the Swierkiewicz cite replaced with Twombly or Iqbal, when Swierkiewicz hasn't been overruled (and certainly not that part of it)? This doesn't seem like Brennan sneaking the sliding scale back into Burger King.
Posted by: Bruce Boyden | Mar 11, 2011 4:48:13 PM
In my recent article ("Why Twombly is Good Law (But Poorly Drafted) and Iqbal Will Be Overturned") (yes, shameless plug) I explore the point made by others in the comments above that the key to understanding Twombly and Iqbal is to recognize that both cases involved the "factual sufficiency," as opposed to the "legal sufficiency," of the complaint in question. I think Skinner is a start towards confirming this distinction.
For those interested, here is a link (I have no shame) to my article:
Posted by: Luke Meier | Mar 12, 2011 4:02:57 PM
Great post. Right re fact pleading vis a vis pleading legal theories. But also, a broader subtle rein in of Twiqbal. Or more precisely, indirectly cautioning not to over read Twiqbal and a nuanced apology for unneccesary earlier judicial activism.
Posted by: Civ Pro King | Mar 16, 2011 1:57:40 PM