Eight Months of Iqbal: Part 3
posted by Adam Steinman
In this last of three posts on Twombly and Iqbal, I want to talk about the bills now pending in Congress (one in the House and one in the Senate) to overturn these two decisions.
The Notice Pleading Restoration Act (S. 1504) would provide:
Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).
The Open Access to Courts Act (H.R. 4115) would provide:
A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff’s claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.
Legislation along these lines would certainly be valuable to the extent that it would foreclose some common misreadings of Twombly and Iqbal that would indeed result in a much stricter pleading standard. As I explain in my earlier post, however, Twombly and Iqbal should not be read as allowing courts to disregard allegations for lack of “plausibility.” What was fatal in Twombly and Iqbal was the fact that allegations necessary to establish a claim for relief were, in the Court’s eyes, presented as “mere legal conclusions.” The plausibility inquiry (which, as H.R. 4115 suggests, assesses whether the nonconclusory allegations are sufficient to raise an inference of liability) is actually a method to save complaints that otherwise rest on mere conclusory allegations.
Nor should Twombly and Iqbal be read to overturn longstanding notice-pleading precedents like Conley. Read correctly, the framework established by Twombly and Iqbal is not inconsistent with (to quote S. 1504) “the standards set forth by the Supreme Court of the United States in Conley v. Gibson.” Admittedly, Twombly set aside Conley‘s “beyond doubt . . . no set of facts” language (which H.R. 4115 would explicitly reinstate). But what Twombly “retire[d]” was merely what it called a “focused and literal reading” of this phrase that would have precluded dismissal “whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery.” The Supreme Court had never read Conley this way. If it had, a complaint that alleged nothing more than “The planet Earth is round” would survive, because any number of actionable facts might be consistent with the Earth being round.
Properly understood, Conley did not preclude dismissal as long as any set of facts would entitle the plaintiff to relief. It precluded dismissal unless “the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” This merely confirms that speculation about the provability of a claim is not a proper inquiry at the pleadings phase; provability is relevant only when it appears “beyond doubt” that the plaintiff cannot prove her claim. But the Twombly majority itself endorsed this idea; it wrote that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” The dispositive question is — and always has been — what makes something a “well-pleaded complaint”? Conley and Twombly provide the same answer: “all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
It is not fundamentally unreasonable to accept, as a corollary to the fair-notice principle, a rule that “mere legal conclusions” need not be accepted as true at the pleadings phase. (The Seventh Circuit’s post-Iqbal decision in Brooks, discussed in more detail here, reflects this; and not even pre-Twombly courts would have had to accept conclusory allegations like “The defendant violated my rights in a way that entitles me to relief” or “The defendant violated Title VII.”) But it all depends on how courts delineate the boundary between conclusory allegations (whose truth need not be accepted at the pleadings phase) and well-pleaded, non-conclusory allegations (which must be accepted as true). That’s the real challenge going forward, and the bills currently pending in Congress don’t provide further clarity on this issue.
So even if some form of these bills become law, there will remain work to be done. And until the Supreme Court, Congress or the rule-makers tell us otherwise, courts should be defining “conclusory” in a way that leaves the classic exemplars of notice pleading (Conley, Leatherman, Swierkiewicz, Form 11, Form 18) in place. If courts are faithful to that idea (and that may be a big “if”), it will provide a significant check on their ability to over-assert the power to disregard allegations as mere legal conclusions.
PS: Hat tip to Ed Hartnett for his recent listserv post containing the relevant language/cites for the two bills quoted above.
PPS: I’m just now noticing Howard Wasserman’s PrawfsBlawg post, which summarizes these two bills and some additional proposals as well (also courtesy of Ed).
January 22, 2010 at 9:57 am
Posted in: Civil Procedure, Supreme Court
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Responses (2)
Howard Wasserman - January 22, 2010 at 1:41 pm
Something interesting about the 7th Circuit: It had insisted, both before and after Twombly, that “I was fired from my job with defendant because of my race” was sufficient. I doubt that pleading passes muster today.
TJ - January 23, 2010 at 5:57 am
Adam, to take up our conversation from the other thread, I don’t disagree with you that Twombly and Iqbal are reconcilable with preexisting law (I think I am one of the few who believe this). But a few thoughts:
1. You say that my detail and specific allegation that President Obama ordered my alien abduction would not fail the literal language of Iqbal. But as we teach students, the content of a legal rule is in the application. What exactly is “conclusory” about the allegation in Twombly, that defendants “agreed” to fix prices? Was it that the complaint didn’t specify the time and place of the smoke-filled room in which this agreement occurred? One strongly suspects that this deficiency is not what the Justices were concerned about, no matter what they literally say in the opinion.
2. The point, rather, is that both before and after Iqbal, my complaint that President Obama ordered my alien abduction would be dismissed. And there is no other explanation than that, before Iqbal, there was an implied “plausibility” requirement, whatever Conley might have said about it. As you point out, some of the proposals being floated now want to tie plausibility to the standard for judicial notice. But other proposals (especially the ones in Congress) simply want to get rid of plausiblity altogether.
3. Following from that, I think that prior to Twombly and Iqbal, the requirements of “non-conclusory” and “plausible” were both implicit in Rule 8; and in that sense I agree with you that Iqbal is not irreconcilable with prior doctrine. It is just that, as you say, there was very limited understanding of what “conclusory” meant, and so too with “plausibility.” Before Iqbal, “Defendant negligently crashed his car into mine” was not conclusory, now it might be. Before Iqbal, “President Obama was really born in Indonesia and faked his birth certificate” probably could not be dismissed for lack of plausibility, now it probably can. The difference is one of degree, not of kind; but I think it is hard to deny there is a difference. And virtually every major legal change can be thought of as one in degree only, by playing off the linguistic gaps in prior opinions.
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