Re-reading Iqbal (a new take on the 12(b)(6) wars)
posted by Jaya Ramji-Nogales
My friend and law school classmate Adam Steinman tempted the civ pro geek in me with his thoughtful and thorough discussion of the recent Iqbal decision, which has caused more excitement in proceduralist circles than I’ve seen in quite some time! His thoughts should prove most helpful to those of you figuring out how to teach the case in your Civil Procedure class this fall . . .
Thanks to the folks at Concurring Opinions for giving me the opportunity to share some thoughts on last Term’s decision in Ashcroft v. Iqbal, which dismissed a civil-rights complaint filed against John Ashcroft and Robert Mueller by Arab Muslim men detained in the weeks following 9/11. I realize my comments are glacially slow-in-coming by blogosphere standards (Iqbal came down over two whole months ago). But it’s been back in the news lately, including Adam Liptak’s NYT article and Senator Specter’s introduction of the Notice Pleading Restoration Act (which would legislatively overrule Iqbal, although even Iqbal’s critics concede that the bill may have little chance of becoming law).
Iqbal has been of immense interest to litigators and civil-procedure scholars, because it embraces the 2007 decision in Bell Atlantic v. Twombly as reflecting the generally applicable pleading standard in federal court. Twombly had dismissed an antitrust conspiracy claim for lacking sufficient “factual enhancement” to make it “plausible.” Twombly was quite controversial in its own right, but some had speculated it might be narrowly confined to complex antitrust cases.
The response to Iqbal reveals a sharp divide between those who “are lovin’ Iqbal” (in the words of a recent WSJ headline) and those who are, well, not lovin’ Iqbal. But there has been very little disagreement about how to read Iqbal—everyone seems to agree that Iqbal imposes significant new obstacles on plaintiffs at the pleadings phase and, thereby, discards the liberal, notice-pleading paradigm that most lawyers, judges, and law professors alive today learned in law school. The focus of the debate has been whether this result is proper or desirable. I want to challenge the premise that this is the correct reading of Iqbal. In fact, if read carefully, Iqbal can be fully reconciled with the pre-Twombly view of pleading. (If readers are interested, this argument is explored in more detail in my article “The Pleading Problem“, which is available on SSRN.)
Point 1: Precedent from the pre-Twombly pleading regime is still good law. The Supreme Court has made clear that only it has the power to overrule its decisions, and neither Iqbal nor Twombly overrules core Supreme Court precedents from the notice-pleading era. Twombly did put into “retirement” the statement from Conley v. Gibson that a complaint should be dismissed only when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” but this language was never taken literally. If it had been,a complaint alleging nothing more than that “the Earth is round” would pass muster, because any number of actionable facts would be consistent with the Earth being round. The more significant cases are more recent decisions—unanimous ones at that—in Swierkiewicz (2002 per Justice Thomas) and Leatherman (1993 per Chief Justice Rehnquist), where the Court explicitly considered and rejected arguments that a complaint must contain additional details or indicate evidence that would support the plaintiff’s allegations. Iqbal and Twombly do not question these cases, which must be presumed to remain good law.
Point 2: Under Iqbal, “plausibility” is not the primary inquiry (or even a necessary one). Many have emphasized the fact that Twombly and Iqbal allow judges to examine a complaint’s “plausibility” based on the judge’s own “judicial experience and common sense.” But a careful look at Iqbal’s reasoning shows that plausibility is a secondary inquiry that a plaintiff might be able to avoid altogether. Here’s the two-part test that Iqbal uses: First, identify allegations that are conclusory, and disregard them for purposes of determining whether the complaint states a claim for relief. Second, determine whether the remaining allegations, accepted as true, plausibly suggest an entitlement to relief. So, as long as an allegation is not conclusory at Iqbal step one, it must be accepted as true. Plausibility only comes into play when a court disregards a crucial allegation as conclusory; then the inquiry becomes whether the remaining, non-conclusory allegations—standing alone—plausibly suggest an entitlement to relief (Iqbal step two).
It follows that when a complaint contains non-conclusory allegations on every element of a claim for relief, the plausibility issue vanishes completely. A complaint that fails to provide non-conclusory allegations on every element might nonetheless pass muster if it contains enough to plausibly suggest an entitlement to relief. But a complaint that does provide non-conclusory allegations on every element of a claim, by definition, exceeds the threshold of plausibly suggesting an entitlement to relief for purposes of Iqbal step two. A court that ignores such a non-conclusory allegation on plausibility grounds would disobey Iqbal step two, because it would be failing to accept a non-conclusory allegation as true.
Point 3: “Conclusory” can be defined to reconcile Iqbal with pre-Twombly authority. We’re not out of the woods yet. We’ve simply shown that, to paraphrase a former lawyer-president, it all depends on what the meaning of the word conclusory is. A critic of Iqbal might worry that the same problems remain—a judge can simply disregard as conclusory any allegation that, say, lacks sufficient “enhancement” to make the allegation “plausible.” But that can’t be what conclusory means, because that definition would conflate Iqbal’s two distinct steps. Moreover, any definition that would disregard an allegation as conclusory on the basis that the complaint lacks other allegations suggesting its truth would flout decisions like Swierkiewicz and Leatherman, not to mention the Federal Rules’ famous Form 11 (f/k/a Form 9), which provides that a complaint would be sufficient simply by alleging “On <Date>, at <Place>, the defendant negligently drove a motor vehicle against the plaintiff.”
But what if we defined conclusory this way: an allegation is conclusory only when it fails to identify the real-world acts or events that entitle the plaintiff to relief from the defendant. This transactional definition of conclusory would not require the complaint to contain other allegations that support the complaint’s characterization of the act or event; nor would it require extensive details about the act or event. Under this definition, Form 11 passes muster because it identifies the liability-generating act or event (being hit by the defendant’s car), even though other aspects of Form 11 (the allegation that the defendant drove “negligently” at the time) might be characterized as conclusory in some sense. The same goes for Swierkiewicz. That complaint identified the act that made the defendant liable (the plaintiff’s firing) even though the characterization of that event (the employer’s discriminatory intent) might be labeled conclusory.
The Iqbal complaint, by contrast, fails under this standard because the allegation of invidious motive appeared in an allegation (paragraph 96) that stated generically that Ashcroft, Muller and nine other defendants “each knew of, condoned, and willfully and maliciously agreed to subject Plaintiffs to [harsh] conditions of confinement as a matter of policy, solely on account of their religion, race, and/or national origin.” This allegation does not identify—not even in broad terms— what Ashcroft and Mueller actually did to discriminatorily subject Iqbal to harsh conditions of confinement; yet their role was crucial as a matter of substantive law, because the Iqbal Court held that Bivens liability required that each defendant, through his own individual actions, violated the Constitution. (This is part of why Swierkiewicz was an easier case to plead—respondeat superior applies to employment-discrimination claims like Swierkiewicz, so the fact that a plaintiff has been fired for invidious reasons would be sufficient to establish a claim against the company.)
The result in a case like Iqbal could be different, however, if the complaint contains more concrete allegations. For example:
“Ashcroft and Mueller ordered that all post-September-11th detainees who are Arab Muslim men be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI, and they issued this order because of its adverse effect on this particular group.”
“Ashcroft and Mueller adopted a policy that all post-September-11th detainees be held in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI. Ashcroft and Muller anticipated that the vast majority of post-September-11th detainees would be Arab Muslim men, and they adopted this policy because of its adverse effect on this particular group.”
These hypothetical allegations would be sufficient because (unlike paragraph 96) they identify in “short and plain” fashion what Ashcroft and Mueller actually did.
One might respond that it’s just too dangerous to give judges any power to disregard allegations as conclusory, and therefore the better course is to require courts to accept all allegation as true at the pleadings phase. But I doubt this has ever been the rule, even before Twombly and Iqbal. Surely an allegation that “the defendant violated the plaintiff’s legal rights in a way that entitles the plaintiff to relief” would not have been accepted as true. So some line has to be drawn, and the theory outlined here suggests one way to draw it. Even the idea of “notice pleading” requires some understanding of what notice the defendant must receive. (That’s precisely why Charles Clark, the chief drafter of the original Federal Rules, was not a big fan of that phrase. He wrote that notice pleading was “a sound approach so far as it goes; but content must still be given to the word ‘notice.’ It cannot be defined so literally as to mean all the details of the parties’ claims, or else the rule is no advance.
The upshot is that there is more than one way for courts, litigants, and academics to make sense of the controversial decisions in Twombly and Iqbal. The approach proposed here would bring those decisions into much closer alignment with the notice-pleading regime that prevailed prior to Twombly. I’d certainly welcome comments or questions (email@example.com) if any reader has the time or the inclination.