How Cautionary is Erickson v. Pardus? (with an excursus on Commerce Clause disillusionment)
posted by Mike O'Shea
For civil procedure mavens, the clear Big SCOTUS Case of the Term is Bell Atlantic Corp. v. Twombly (May 21, 2007), which dismissed antitrust conspiracy claims brought by a humongous class of consumers against the regional telecoms. The seven-Justice majority in Twombly held that the plaintiffs’ complaint failed to state a claim for relief. The Court banished into outer darkness (or as Justice Souter put it, “retired“) the famous liberal-pleading mantra from Conley v. Gibson (1957) that a motion to dismiss should be denied unless plaintiff can prove “no set of facts” consistent with her allegations that would support relief. Further, the Court applied what seemed a fairly demanding “plausibility” requirement to the plaintiffs’ allegations — viz., it’s not enough that the defendants’ alleged parallel conduct could have reflected an illegal agreement to restrain trade; instead, the allegations had to “nudge th[e] claims across the line from conceivable to plausible.” Finally, the majority served up a thick slice of policy reasoning: due to the massive costs of discovery to defendants in major civil antitrust suits (in a cynical moment I described this to a friend as the “Sullivan & Cromwell client pleading standard”), weak complaints must be weeded out prior to discovery using something stricter than the Conley “no set of facts” standard.
There’s also an effective dissent by Justice Stevens, who recognizes that this is all going straight into forty thousand Civ Pro casebooks. (Indeed, I doubt Twombly can be cut down much for classroom use. Some string cites and footnotes look shaveable, but students are basically going to need the whole thing.)
Heady stuff. Twombly clearly does two big things: (1) It scraps the Conley “no set of facts” language. This part of Twombly is straight construction of Fed. R. Civ. P. 8(a)(2) and I have no doubt it applies across the board. Plaintiffs opposing a 12(b)(6) motion to dismiss just can’t quote that part of Justice Black’s Conley opinion any more. (2) It applies a standard of meaningful “plausiblity” scrutiny to allegations in Sherman Act section 1 (antitrust conspiracy) cases.
After that, it gets fuzzy. Does the tough “plausibility” pleading requirement also extend to all civil complaints? Or was it just about antitrust claims, where defendants are often huge entities engaged in complex activity, and the line separating lawful from actionable conduct can be quite abstract (e.g., “tacit agreement” vs. mere “conscious parallelism”)? Or was the line between “big” and “small” civil cases? For what it’s worth, I think the Twombly opinion is neutral to hostile on the validity of extending tough plausibility scrutiny much outside the antitrust or “big civil case” context. Reading the opinion with the eyes of a former defense litigator, it seemed to be deliberately hard to extract a “plausiibility” soundbite that isn’t closely linked to a claim-specific mention of “the antitrust context,” “Sherman act claims,” “antitrust complaints,” consistently citing to antitrust precedents (rather than other types of cases) for points about pleading, etc.
Several federal district court judges disagree with me. They have already rendered pleading opinions applying the Twombly “plausible claim” language to claims quite different from Twombly. See, e.g., Hicks v. Ass’n of Am. Med. Coll., 2007 WL 1577841 (D.D.C. May 31, 2007) (wrongful discharge); Horton v. Williams, 2007 WL 1575974 (M.D. Ala. May 30, 2007) (constitutional civil rights case).
But the Twombly opinion is no longer the whole story.
The Supreme Court sometimes releases an opinion with vast potential consequences — a “landmark” like Twombly — and then follows it up almost immediately with a short, low-key, often per curiam opinion in another case involving the same area of law, but reaching a different outcome. When this happens it is tempting to think the Court is cautioning lower courts not to over-read the significance of the first opinion. If we stipulate that sometimes this is indeed what the Court is doing, we might dub such perfomances “Don’t Get Carried Away” (DGCA) opinions. I digress to offer an illustration (block quote).
Here’s an example near to my heart: In U.S. v. Lopez, 514 U.S. 549 (1995), the Court invalidated a federal statute for exceeding Congress’s enumerated powers under the Commerce Clause, the first such holding in sixty years. Lopez was a thunderclap; a potential revolution (the HLR ran a Supreme Court Foreword titled “Revolutions?”); the Fuller Court had risen again from the 1890s to walk among the living. Except that just six days later, the Court released United States v. Robertson, 514 U.S. 669 (1995) (per curiam), unanimously upholding a RICO conviction (for in-state criminal activity) against Commerce Clause challenge in a brief, casual opinion that sounded like all the other post-New Deal commerce power cases except Lopez. Some of us enumerated-powers fans got much too excited over the next decade by Lopez progeny like U.S. v. Morrison (2000) and Solid Waste Agency of N. Cook County v. Corps of Engineers (2001). Some of us hoped the Court might be working up the courage to try some “Real Federalism,” as Michael Greve put it.
But not so much. As everyone knows, when given the chance to enter a Commerce Clause ruling with some real “bite” in the drug case of Gonzales v. Raich (2005), the Court instead reaffirmed the received Wickard wisdom in a 6-3 decision. Maybe we should have paid more attention to the timing of the little Robertson opinion back in ’95, telling us “Don’t Get Carried Away.”
Now the big question in Civ Pro Land is whether Monday’s brief per curiam opinion in Erickson v. Pardus is a DGCA opinion meant to caution lower courts from over-reading Twombly, released two weeks earlier. Erickson summarily reverses a 10th Circuit opinion that had dismissed a prisoner’s Section 1983 civil rights complaint for failure to state a claim. Mr. Erickson claimed that prison officials were violating his constitutional rights by withholding medicine injections that he needed as part of an ongoing treatment for hepatitis C. The 10th Circuit had held that Erickson’s allegations of harm from withholding treatment were fatally “conclusory.” The Supremes sharply rejected the 10th Circuit’s holding, stating that it “depart[ed] in so stark a manner from the pleading standard mandated by the Federal Rules of Civil Procedure” that SCOTUS intervention was appropriate. Interestingly, Erickson cites Twombly for the proposition that a complaint need only “give the defendant fair notice of what the claim is and the grounds upon which it rests.” And it nowhere cites the ‘plausibility of claim’ language from Twombly.
Most commentators are indeed reading Erickson as a DGCA opinion that reins in Twombly. That was my own early reaction in Doug Berman’s comments box. The best such comment I’ve read is from Amy Howe at SCOTUSBlog (concluding that the Court probably “decided to summarily reverse in Erickson . . . in order to counteract any impression that could arise that Twombly was intended to set a particularly high pleading standard.”).
And that’s probably right. But I’m no longer as gung-ho about Erickson-as-DGCA-opinion as I was at first. Let me close this too-long post by offering two considerations that counsel “caution about caution” (!!) — i.e., against overreading the extent to which Erickson limits Twombly.
1. The real wild card after Twombly is how far and how seriously the emphasis on “plausibility” will extend beyond antitrust. Erickson, a civil rights case, doesn’t cite that language — but Erickson also makes crystal clear that this question is not at issue in the decision. Twombly says Rule 8 requires a federal complaint to do two things; it must both give sufficient notice to D of what plaintiff’s claim is; and it must “show” that “the pleader is entitled to relief.” Twombly carefully specified that the Court was talking there about the second, plausibility requirement, not notice. See Twombly, slip op. at n.5. And Erickson makes equally clear that it is talking about the notice requirement. Cf. Erickson, slip op. at 5 (observing that “[i]t may in the final analysis be shown that the District Court was correct to grant respondents’ motion to dismiss” on some other basis). So perhaps the absence of a “plausibility” discussion from Erickson is not so signficant as it first seemed to me.
2. There is a whole lot of daylight between the facts in Erickson (pleading held sufficient) and those of Twombly (insufficient pleading). Dismissal in Erickson was pretty egregious: Erickson pleaded that he had hepatitis C, that he was on a one-year treatment program for it, that shortly after the program began the prison officials started withholding the treatment, and that his life was in danger. Surely, unless we are returning to the Field Code, that is a sufficient allegation of substantial harm to satisfy Rule 8(a)(2), and the Supreme Court’s conclusion isn’t surprising.
June 6, 2007 at 6:47 pm
Posted in: Supreme Court
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Responses (2)
Howard Wasserman - June 7, 2007 at 8:02 am
I immediately thought back to U.S. v. Robertson as soon as I saw the order in Erickson and had the same view that both are signals to lower courts and litigants that the Court did not mean to change things so dramatically and that they should not go crazy.
Lopez (and then Morrison) did have an important effect on the jurisprudence–Even if later cases such as Raich did not strike down federal laws, Lopez/Morrison at least force the courts to take a hard(er) look at the question. That could be part of Twombley’s impact–making sure lower courts take a close look at 12(b)(6) motions that challenge factual sufficiency even in non-Rule 9 cases, rather than simply falling back on Conley’s “no set of facts” language. In truth, of course, lower courts generally were taking that close a look.
Twombley also could be what I call a “pendulum” case, only in reverse. The historic trend has been that SCOTUS insists on liberal notice pleading, lower courts require a bit more factual detail (as discussed in Christopher Fairman’s work), then SCOTUS pulls the pendulum back, reminding us that it is notice pleading (Leatherman, Swierkiewicz). Twombley and Erickson together can be seen as SCOTUS trying to set the pendulum of factual detail into some explicit range.
Mike O'Shea - June 7, 2007 at 10:12 pm
I will be especially interested to see how the Seventh Circuit interprets and applies Twombly and Erickson. It is a smart court with a history of making important procedural rulings, and (as I’m not the first to observe) Judge Easterbrook, in particular, has been a diligent enforcer of liberal notice pleading against the district courts’ attempts start to try to require more detail. I assign one of his opinions (Kolupa) as an exemplar of the straight-up, “no set of facts” Conley approach to pleading. But that approach has now been rejected, to at least some degree, in at least some cases.
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