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.