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Monday, May 18, 2009

Iqbal and the death of notice pleading: Part II

Continuing on my discussion of the death of notice pleading in Ashcroft v. Iqbal:

The Court makes the distinction between conclusory and non-conclusory facts central to pleading analysis, with the former not "counting" in evaluating the sufficiency of the complaint. As Scott Dodson argues here, it is problematic that the Court has reintroduced two tiers of facts (conclusory v. non-conclusory), a remnant of fact pleading (which distinguished between evidentiary and ultimate facts).

But a bigger problem is how anyone can plead defendant's state of mind anymore without avoiding such conclusory facts. This will be an issue in this case and beyond. In this case, the Supreme Court remanded to the Second Circuit to consider whether to remand to the district court to give the plaintiff a chance to replead. But what more could he say?

The majority rejected as conclusory, bare allegations that are not entitled to be taken as true for purposes of the 12(b)(6) the following allegations: 1) that Ashcroft and Mueller "'knew of, condoned, and willfully and maliciously agreed to subject [him]' to harsh conditions of confinement 'as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.'”; 2) that Ashcroft was the "principal architect" of the discriminatory detention policy; and 3) that Mueller was "instrumental" in adopting and executing that policy.

As Justice Souter argued, it is not clear why these are conclusory or bare allegations (at least considered in light of the other allegations in the complaint). Nor is it clear why these were mere conclusions to be ignored while the following paragraphs were sufficient: 1) "'the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11.'”; and 2) "'[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER after September 11, 2001.'” Can anyone find a principled way to determine why these are any less bare than the three paragraphs quoted above?

More problematically, even accepting the majority's determination that the allegations are indeed bare and conclusory, what else could the plaintiff say at the complaint stage? How else could a plaintiff allege that two government officials had implemented and carried out a policy with impermissible discriminatory intent? Absent some discovery and the chance to inquire into the defendants' thinking when acting (here, in establishing the policies at issue), what words can a plaintiff possibly use to describe that the defendant enacted or approved or acquiesced in a policy knowing (or intending) it to be discriminatory?

This seems to leave plaintiffs in an impossible position.

Posted by Howard Wasserman on May 18, 2009 at 06:12 PM in Civil Procedure, Howard Wasserman | Permalink


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Great commentary on what I think is a very important decision. Hillel, I'm with you on this one. Iqbal is really Twombly plus. Five to four; it will be interesting to see what happens next.

Posted by: Collin Udell | May 20, 2009 10:12:35 AM


Thanks for plugging my paper! I've deposited the fund we agreed upon in your paypal account. :-)

I also don't know how widespread the district court sensibility on this is. It could be only the minority that is pushing in this direction. But my sense is that the Supreme Court didn't come up with this on its own; it is being pushed by SOME lower courts.

And yes, I agree that the lower courts have many other (and much better, though perhaps similarly too broad) docket control tools and techniques at their disposal. (I might add that these tools and techniques were ALSO often gained through district courts pushing appellate courts and Supreme Court along. In other words, I see this as part of a trend.

Posted by: Hillel Y. Levin | May 19, 2009 1:25:36 PM

Hey folks,
Thanks for the great discussion.
Hillel, I don't mean to overstate my view on the "bottom up" vs. "top down" nature of evolving pleading standards. As you know better than most, we don't know very much about what district courts actually do, because we mostly focus on published opinions -- for those who haven't seen it, Hillel has a nice piece on "Unpublication in the District Courts" here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1006101 [forthcoming in Villanova]. But it is precisely because we don't have such a good feel for what trial courts are doing that I am hesitant to lay too much at their feet. After all, when appellate courts do review a district court's ruling on a 12(b)(6) motion, it is almost always when the trial court has granted the motion to dismiss -- denials of motions to dismiss are rarely immediately appealable (that may all change depending on how Iqbal's interlocutory appeals holding is interpreted, but I trust Howard will address that soon). So this bias in seeing dismissed claims at the appellate level may be creating the perception that there are a lot of meritless claims out there that are in tension with liberal pleading standards. I am not saying that this is a sufficient explanation for when and why appellate courts craft clever exceptions to notice pleading, but I think it is part of the story.

In any event, I also think that looking at how district courts resolve cases suggests that they use lots of different tools other than 12(b)(6) to manage dockets [this is in part informed by some ongoing research I am doing on district court adjudication]. We don't see a lot of this if we look only at published opinions. I am not suggesting that this is better than using elevated pleading -- I am only suggesting that district courts have found lots of different ways to manage their dockets. So I guess I agree that some district courts might be clamoring for elevated pleading standards, but I am not convinced that it is widespread (and certainly not convinced that it is necessary -- a point I don't think we disagree on).

As for the term "meritless," I did not mean to suggest that Howard or Lumen had been less than careful in characterizing Iqbal's allegations -- I apologize if that is how it came across.

--Alex R.

Posted by: Alex Reinert | May 19, 2009 12:53:12 PM

"[E]ven accepting the majority's determination that the allegations are indeed bare and conclusory, what else could the plaintiff say at the complaint stage? How else could a plaintiff allege that two government officials had implemented and carried out a policy with impermissible discriminatory intent?"

Much the same was said about securities fraud actions before the PSLRA ratcheted up the pleading standard, yet these actions have already disappeared from the federal docket. See http://securities.stanford.edu/litigation_activity.html. A plaintiff can plausibly allege that two government officials implemented and carried out a policy with impermissible discriminatory intent by obtaining information relevant to that claim from sources other than civil discovery. Query whether FOIA is up to the task.

Posted by: David | May 19, 2009 12:20:41 PM

I second or third the thanks to Alex for contributing. Just to clarify, when I used the word "meritless" in connection with Iqbal's allegations, I was careful in my wording: "what seem to the majority to be far-fetched and meritless allegations." I think in both Twombly and Iqbal (and other cases) the procedural outcome may be driven by some justices' impatience with the very idea that large, respectable telephone companies would conspire to defraud customers, or that honorable men like Ashcroft and Mueller would engage in a civil rights conspiracy. (Harumph!) The burdens of discovery seem much more onerous if you suspect that the plaintiffs will and should lose. I should note that I don't share the majority's view in either case of the intuitive plausibility of the "on information and belief" allegations.

Posted by: Bruce Boyden | May 19, 2009 11:15:46 AM


I misunderstood your first post. I think we are generally in agreement that it is a bad idea to use 12(b)(6) motions as a way of policing claims.

Alex: I really appreciate your chiming in here. But I think I must continue to disagree with you. As you note, lower courts in Swierkiwicz and Twombly dismissed the lawsuit because of insufficient pleadings. And, as you also note, Fairman's article is ALL ABOUT how lower courts were amping up the pleading standards (well before Twombly). My point was only that district courts--SOME district courts, not ALL--are leading the way on this, in their never-ending quest for docket control. The Supreme Court is following, not leading, here.

But I am certainly in agreement with you that calling Iqbal's claim meritless, at this stage, seems way premature. But that's the Supreme Court's claim here; and what worries us all is that this sends signals to lower courts that they get to use their discretion when they review complaints.

Posted by: Hillel Y. Levin | May 19, 2009 10:51:45 AM

actual merits ... are

Noun verb agreement, is that required in a blog post?

Posted by: Lumen Mulligan | May 19, 2009 10:32:56 AM


Thanks for your post.

I certainly have no idea what the actual merits of Mr. Iqbal's claim is. There is no evidence in. But that is the point is it not? All the more reason not to engage in this type of factual inquiry at the 12(b)(6) stage. I wish you well with your motion to amend.

Posted by: Lumen Mulligan | May 19, 2009 10:31:19 AM

As I am one of the lawyers who represents Mr. Iqbal (and the lawyer who happened to argue Mr. Iqbal's case in the Court), I hesitate to comment too much on the substance of Howard's post -- we are, after all, still digesting the opinion and preparing to seek leave to amend the pleadings. But I will offer these observations. First, in Iqbal itself, both the district court and the court of appeals denied the motions to dismiss. In Bell Atlantic, the district court had granted the motion to dismiss and the Second Circuit reversed. And in Swierkiewicz both lower courts had found the complaint insufficient. So I am not sure that Hillel is at all correct that the movement to require detailed or heightened pleading is a "bottom up" movement. Indeed, I think there is little if any evidence that lower courts are having difficulty disposing of complaints that they think are insubstantial or meritless because of liberal pleading rules. There might be that perception, but I have yet to see the evidence. Christopher Fairman's The Myth of Notice Pleading [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=409140] confirms, if anything, the disconnect between perception and reality, even as it astutely observes the many ways that some lower courts have tried to amp up the pleading standards .

Second, I think it is troubling to use Iqbal as an example of "meritless" litigation. Granted, I am biased (see above), but the US settled with Mr. Iqbal's co-plaintiff for a substantial sum, and the US is not in the business of making settlements to dispose of "nuisance suits." Whether one believes that Mr. Iqbal will ultimately prevail on the merits, nothing suggests this is the kind of case that should never even see the light of day. The Iqbal opinion itself seems to recognize that.

Finally, as to the implications this opinion will have for future litigation, I think that will be, as many have observed, in the hands of the lower courts until the Supreme Court gives additional guidance. It certainly has the potential to have broad consequences, even beyond the civil rights context.

--Alex R.

Posted by: Alex Reinert | May 19, 2009 9:23:10 AM

Hello All,

This is a great discussion.

Hillel, I think we agree more than not. I was trying to state that the district courts have other tools within their discretion (Rule 11 & early Rule 56 motions) to police dockets. They should use their discretion to police dockets with those tools. The 12(b)(6) motion seems a poor choice for the task -- like using a hammer to drive a screw. I take Iqbal to be a directive to push more of these issues into a pre-answer context.

Having served as defense counsel, I am mildly sympathetic to the claim that every frivolous suit ends up costing an arm and a leg in discovery costs just to get to summary judgment. Thus, I see why some want to have more dispositive motions up front. But the 12(b)(6) is too soon and just becomes a pleading game (good plaintiff's counsel will soon not fall into such a trap). This is why I prefer more discretion for the court to use Rule 11 etc (or greater control over initial discovery) to cure the harm of discovery costs for frivolous (or near frivolous) suits.

On another note, I have not followed the impact of Twombly in the FRCP-modeled state systems. Have they generally adopted it? Will the states do so now? If they don't will this increase forum shopping? If the states don't follow Twombly/Iqbal is this to be taken as the market rejecting the SCOTUS approach?

Posted by: Lumen Mulligan | May 19, 2009 9:17:58 AM

I think that a lot that has been said is right. But, again, it seems too easy to me to lay this at the feet of the Supreme Court. Of course, the Court deserves some grief for this. But for years the lower courts have been sending messages to the Court, implicitly and explicitly, that they need more tools for "managing" their dockets. In cases like Swierkiewicz, the Court declined; but now it has apparently given in.

Posted by: Hillel Y. Levin | May 19, 2009 8:58:59 AM

I think Bruce has it right on both points. Pre-Twombly, I always had taught Leatherman and Swerkiewicz as "notice pleading is a pendulum, the lower courts allow it to swing towards fact pleading, then SCOTUS comes along every so often and reminds the lower courts that 'we are a notice pleading jurisdiction.'" That has changed, possibly for the reasons Bruce has suggested. Breyer talks about cost of discovery in his brief dissent.

Unfortunately, at least post-Twombly (and I am guessing it is only going to get worse), lower courts have not seemed to separate uniquely-burdensome-and-expensive litigation from "normal" litigation. Check out Ben Spencer's latest, "Understanding Pleading Doctrine" (forthcoming in Mich. L. Rev.) in which he tries to announce a descriptive framework based on what lower courts had done with Twombly. He shows lower courts demanding more even from on-information-and-belief allegations.

Posted by: Howard Wasserman | May 19, 2009 7:32:20 AM

Anon's 140am comment is borderline silly (and sounds like Justice Kennedy and his clerk who prepared the opinion). First, most of the documents that plaintiffs would need to prove this type of case either don't exist or are not discoverable through a FOIA request. (And in any event one is (was?) not obligated to prove her case solely based on the complaint's allegations.) Second, plaintiffs have not identified some random person - rather they specifically identified the top person in the organization(s) responsible for their alleged unconstitutional treatment. Why is it implausible to believe that the top decisionmakers knew of and approved of the policy/detention tactics carried out by their subordinates. In the hierarchal world of government (especially within the DOJ and FBI), is it really MORE plausible to assume that these top-level decisionmakers were completely in the dark as to what was happening on their watch? And if so, why can't discovery eliminate these persons from consideration. Third, when it comes to a question of intent, it will be rare to find a smoking gun (i.e., a document which says "I intended to discriminate against arabs . . . "), rather intent will be inferred from circumstantial documentary evidence, deposition/live testimony and whether the jury believes/disbelieves the witness. Unfortuantely, most putative defendants do not appreciate being deposed BEFORE a complaint is filed. Perhaps anon is suggesting that a plaintiff engage in discovery before filing a complaint (say by issuing a bunch of subpoenas or FOIA requests - the latter, of course, are only applicable to the federal gov't). Absent pre-complaint discovery, much of what plaintiff would need to prove her case lies with the opposition.

Another problem with Iqbal is specificity. How much does one need in a complaint? Take these two examples: in the first one, an individual is beaten up by several cops in a raid or during an arrest; in the second, the individuals claims his house was unconstitutionally searched by multiple individuals. What does a properly pled civil rights complaint look like now? Is: "While I was in custody, X, Y and Z unlawfully beat me" no longer sufficient? Can X, Y and Z have plaintiff's complaint dismissed on a 12(b)(6) motion because the plaintiff fails to identify which defendant carried out what parts of the beating? After all this statement is "merely conclusory", i.e., it states that the beating administered by X, Y and Z was unlawful. How does one suggest that this needs to be pled post-Iqbal? And how about the situation where multiple officers search a house, but it is unclear who did what when without discovery. Should the district court dismiss a plaintiff's complaint in this scenario because he can't link each officer to a specific action in the complaint?

Posted by: Alex | May 19, 2009 2:49:27 AM

1) that [insert any name] "'knew of, condoned, and willfully and maliciously agreed to subject [him]' to [insert any crime] 'as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.'”; 2) that [insert any name] was the "principal architect" of the [insert any illegal act] policy; and 3) that [insert any name] was "instrumental" in adopting and executing that policy.

That is why this sort of pleading should not be allowed. It allows plaintiffs to sue anyone that they imagine might have ultimately been responsible. If there are factual reasons to support naming someone for the actions, then they should be in the complaint. Judges and official defendants have seen too many cookie cutter frivolous accusations. If the discovery discloses something, amend the complaint. If you have no basis to sue at all except a guess that Ashcroft did something, make a public records request and perform your job under Rule 11 before suing.

Posted by: anon | May 19, 2009 1:39:29 AM

I think Hillel is right; for a long time there was pressure from the lower courts to raise the dismissal threshold in non-9(b) cases, and until recently the court was constantly slapping those down. What's happened is that the court has shifted positions.

But I can't believe the court is really going to push detailed fact pleading as an across-the-board standard. I suspect that what's going on is that in Twombly and Iqbal the justices' intuitions were warped by concern in those cases about particularly onerous costs and burdens of discovery based on what seem to the majority to be far-fetched and meritless allegations. But when this issue crops up in a normal litigation, alleging an agreement between defendants in a fraud case, or intent of the parties in a contract case, or actually any "on information and belief" allegation, my guess (and hope, frankly) is that there will be a pulling back from the precipice. But I doubt the line will be made clear; I think we're entering a long period of deep confusion over Rule 8.

Posted by: Bruce Boyden | May 19, 2009 12:45:38 AM


I think that if what you really want is more discretion for lower court judges, then you ought to like Twombly/Iqbal. If a district court judge believes that a case has some legs, she will deny the motion to dismiss. This decision is not immediately appealable; and if the case is baseless, it'll get kicked at some later point (and the defendant won't be able to appeal the denial of the dismissal in either case).

I don't think Iqbal is a "universal rule from above." Rather, I think it accommodates lower court judges who want to kick cases that they find implausible and baseless.

The real question, then, is whether we want district court judges to be making these decisions at such an early stage of the proceedings. Obviously, some district court judges are pleased to have this power.

Posted by: Hillel Y. Levin | May 18, 2009 11:49:22 PM


I did not mean to suggest that all district court judges have adopted heightened pleading standards in all cases. That's obviously not the case.

But the Swierkiewicz, Twombly, and Iqbal cases did not come from nowhere. They came from lower courts that dismissed them because the judges thought they were too thin, and a body of law had developed in the lower courts allowing them to make these decisions. This view also jibes with other developments in the lower courts giving judges greater power to "manage" their dockets (which, I think, is really code for figuring out how to get rid of cases). The Supreme Court has been accommodating of these changes, but it isn't making them up on its own.

Posted by: Hillel Y. Levin | May 18, 2009 11:44:56 PM

The tendency is to give more detail, handled as a matter of discretion and, I would add, strategy. The rule of thumb I try to tell my students is "plead what you know." I also would argue (somewhat in line with what Lou suggests) that district courts should wield discretion in light of the specific case and the issues in play and what we reasonably can/should expect the plaintiff to know at the outset. There needs to be some recognition (absent from the discussions in both Iqbal and Twombly) in the lower courts of the impossibility of obtaining factual detail at the pre-filing stage.

Posted by: Howard Wasserman | May 18, 2009 11:19:05 PM

It is my experience as well that some complaints in practice are far more fact-intensive than the Rules suggest. But then again, many states with FRCP systems (and some districts) have mandatory form pleading (Kansas and [I think] California for example). Does consistency with Iqbal kill these practices?

Further, even if the practice is to give more detail, this seems better handled as a matter of discretion at the trial level for the reasons Howard points out. Issues such as: is this case a fishing expedition (i.e., Iqbal maybe) or are the defendant's motivations actually elements of the case that cannot be proven until there is discovery (e.g., many Title VII claims)? A universal rule from above seems ill-suited to this task. It seems better to set the bar low and allow district courts to flesh this out --- perhaps with more aggressive Rule 11 sanctions and Rule 56 usage. Why the big rush here. Litigation is bad, but some times the system has to work over problems a bit before plaintiff loses.

This all reminds me of Andrew Siegal's recent Texas Law Review (84 Tex. L. Rev. 1097 (2006)) piece where he argues that hostility to litigation is the organizing theme for the Rehnquist Court.

Posted by: Lumen Mulligan | May 18, 2009 11:04:55 PM

I couldn't disagree more. I have not read Laiman's The Myth of Notice Pleading in a long while, so I can't comment on its merits, but as a district court clerk in the Eastern District of Pennsylvania I was damn sure to err on the side of not dismissing a complaint when recommending to my judge whether to grant or deny a motion to dismiss. Under Third Circuit precedent, a district court commits reversible error by dismissing a complaint with prejudice unless amending the complaint would be futile (e.g., a statute of limitations problem). We did not dismiss, for example, the "thinnest" of Title VII complaints because it was unclear what, if any facts, a plainitff might suddenly decide to incorporate in an amended complaint that did not appear in the first one that gave rise to claims of race or sex discrimination. There was rarely, if ever, the problem that a defendant had insufficient notice to understand the plaintiff's claims/allegations. We reasoned that in these and other civil rights cases (e.g, Section 1983) the benefit of the doubt should go to the plaintiff - not the defendant because plaintiffs were typically represented by attorneys who were by and large less sophisticated and less precise in their use of language. And to penalize these plaintiffs because they couldn't afford better lawyers appeared to run contrary to the intention of the Federal Rules of Civil Procedure. Indeed, we reasoned that such plaintiffs should not be at a comparative disadvantage with a plaintiff who proceeds pro se. And at a more basic level my Judge and co-clerk agreed that such "thin" complaints clearly satsified the plain language of Rule 8(a)(2). Whether this is true in other courts or for other judges I obviously can't say. But my experience is certainly a far cry from your own.

Posted by: Alex | May 18, 2009 10:53:34 PM

One thing that's been missing in the chatter about Twombly and now Iqbal is that a lot of this is actually coming FROM district and circuit court judges--rather than just being handed down from on high from the Supreme Court.

There was an article a few years back demonstrating (persuasively, in my view) that notice pleading was really a myth, and that lower courts had erected higher standards that Conley would have required.

My own experiences as a district court clerk and as a litigator conformed with this view--that lawyers and district court judges actually expect something far more specific than notice pleading.

In my civ pro class this semester, after covering Rule 8, Conley, and the related forms (but before Twombly), I gave students some randomly-selected complains from a variety of case and asked that to review them in groups. I then asked if there was anything interesting to them about the complaints. Several students immediately commented on the length and detail of the complaints. A basic negligence claim looks nothing like what the forms or Conley would suggest is necessary.

So I think that the story is a little more complicated than "the Supreme Court doesn't know anything about litigation." I actually think that the Court may be taking some cues from lower courts. Now, of course, there are many lower court judges who would disagree with the Supreme Court on this case, and who would prefer more access in general. But district court judges are constantly concerned about their docket size and the frivolity of many of the cases that come their way, and they look for ways to get rid of cases. The Supreme Court may just have gotten the message.

Posted by: Hillel Y. Levin | May 18, 2009 10:22:09 PM

Great posts, Howard. Looking forward to more.

In response to dmv, I'd say we've reached the functional equivalent of the death of notice pleading--when will a complaint ever be dismissed (or subject to Rule 12(e)) for failure to provide the requisite notice when we now have the factual sufficiency standard of plausibility that will be far easier to attack? Now, pleading's all about the facts, baby. And, the Court's directive to ignore conclusory fact pleading (note that, as I read it, the conclusory allegations were of fact, not law) will force plaintiffs to plead specific, detailed allegations (that, as Howard says, discrimination and conspiracy plaintiffs will have a difficult time doing). Coupled with the transsubstantive application of these standards, I think we taken another step toward the Code pleading of yore.

Posted by: Scott Dodson | May 18, 2009 9:04:23 PM

I agree that some trial experience (either as an attorney or a judge) would help--an issue that several people have been making on various listserves. On the present court, only Ginsburg has civil trial experience (Souter was a line prosecutor, I believe) and none ever was a trial-court judge. There is no conception of how civil litigation plays out. So maybe that is a chit in favor of Sotomayor. Of course, since all the public cares about is the Court's role in constitutional lawmaking, the new noise is about appointing a politician--which is going to raise even more problems for trial-level procedure.

Posted by: Howard Wasserman | May 18, 2009 7:19:45 PM

Oh, and third commuestion:

What is Kennedy's deal?

Is it just me or is Anthony Kennedy not all about him some
government/government-official immunity?

Kennedy is the pusher of the notion that it is beneath the
dignity of state governments to be sued by individual citizens
(don't even get me started on that one). Kennedy is the one who
tried to gut Ex parte Young altogether in Couer d'Alene.

It's so bizarre to me. Maybe because I hold a view of individuals
vis-a-vis the state diametrically opposed to Kennedy's. Still.
What's his deal?

Posted by: dmv | May 18, 2009 6:33:45 PM

Two questions:

(1) If this is the death of notice pleading, where does that put
us? Are we back to fact pleading? You hinted that the Court seems
to be introducing elements of the latter again. Is that really
where we're headed?

(2) How much of this do you think results from the lack of
trial-level work by the current crop of justices? It seems like
you're suggesting that someone who has actually had to plead a
case, or deal with pleadings at the trial level, wouldn't have
gone the way the Court went?

Posted by: dmv | May 18, 2009 6:24:27 PM

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