Pleading Insanity

Pleading is an important part of my civil procedure class. It used to be that after suffering through the vagaries of personal jurisdiction and the dreaded Erie doctrine, students were relieved to get to pleading. But after Monday's decision in Ashcroft v. Iqbal, the standard for addressing the adequacy of a complaint got a lot more complicated. More importantly, Iqbal (like Bell Atlantic v. Twombly before it), reached the wrong result and will dramatically limit plaintiffs' access to courts.

In 2007 the Supreme Court decided Bell Atlantic. In this case, the plaintiffs alleged that the defendants, who were various telecommunications providers, had violated the Sherman Act by entering into an agreement not to compete and to exclude potential competitors. To support this claim, the plaintiffs alleged that the defendants had engaged in parallel conduct. The court noted that this parallel conduct was consistent with conspiracy, but also just as consistent with rational (and perfectly legal) business activity. The court held that because the plaintiffs' allegations, even taken as true, were not necessarily suggestive of illegal conduct, their complaint was inadequate. Bell Atlantic therefore established that a plaintiff's complaint must contain allegations that plausibly (not just possibly, or conceivably) establish a legal claim.

Left open after Bell Atlantic was what exactly "plausibility" meant, and whether it applied to cases outside of Bell Atlantic's specific antitrust context. Ashcroft v. Iqbal was the next case to examine these issues. Javaid Iqbal was arrested in November 2001 on charges of conspiracy to defraud the United States and fraud in relation to identification documents. He was placed in pretrial detention in New York. In his complaint, he alleged that the FBI designated him a person of "high interest" in the Sept. 11, 2001, attacks solely because of his race. Because of this designation, he was transferred to a maximum-security special housing unit for six months while he was awaiting trial for his fraud, where he claimed he was consistently mistreated. Iqbal alleged that John Ashcroft was the principal architect, and Robert Mueller was instrumental in the adoption, promulgation and implementation of this discriminatory policy to make designations on the basis of race. Iqbal brought a Bivens action against these two high-level governmental officials, among others.

The issue in Iqbal was whether the plaintiff's allegations could survive a 12(b)(6) motion to dismiss. First, the court confirmed that Bell Atlantic's plausibility standard applies to all civil cases, not just in the antitrust context. Next, the court purported to clarify the meaning of Bell Atlantic and plausibility. It reasoned that a complaint does not require "detailed factual allegations," but does need more than labels or conclusions or a formulaic recitation of the elements of a cause of action.

The court held that Iqbal's complaint did not meet this standard. It viewed Iqbal's allegations that Ashcroft was the principal architect of the policy, and that Mueller was instrumental in adopting and executing it, as bare assertions that amounted to nothing more than reciting the elements of his constitutional claim. There were other allegations in Iqbal's complaint that Mueller actively directed the policy to detain Arab Muslim men in highly restrictive conditions, and that both officials cleared it in discussions shortly after Sept. 11, 2001. But the court held that these did not plausibly suggest a constitutional violation (including a requirement of invidious discrimination). Even if these allegations were true, the court believed that the more obvious explanation was that Mueller and Aschroft were simply taking steps that they believed would protect the country in the aftermath of the Sept. 11attacks.

There are several reasons why this decision is wrong. Iqbal alleged that Ashcroft and Mueller were active participants in a discriminatory policy. If true, it is hard to get around the conclusion that these officials violated Iqbal's constitutional rights. Yet rather than taking these allegations as true, the court characterizes them as not "plausible" and substitutes its own view that there are more likely other explanations for their conduct. This contradicts a long-standing pleading standard that the court purports not to change: that a plaintiff's allegations are taken as true for purposes of a motion to dismiss. As Justice David Souter's dissent notes, at the motion to dismiss stage, "a court must take the allegations as true, no matter how skeptical the court may be. The sole exception [established by Bell Atlantic] to this rule lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff's recent trip to Pluto, or experiences in time travel." In Bell Atlantic, the plaintiff's allegations, if true, supported one of two equally likely inferences: Either the defendants had engaged in an antitrust conspiracy or they had engaged in legitimate business conduct. But Iqbal is different: If the defendants did what the plaintiff alleged, they violated the law. By taking an aggressive view of "plausibility," the majority opinion elevates a judge's view of what likely happened to being of paramount importance at the motion-to-dismiss stage. And at this stage of the case, without the benefit of discovery, what additional facts could the plaintiffs reasonably be expected to know? This aggressive plausibility standard is new, and will have a severely limiting effect on a plaintiff's ability to draft and file an adequate complaint.

Why did the court take this dramatic step? It was clearly concerned that this was a national security case. But the opinion is nowhere limited to the national security context, and purports to describe pleading standards for general civil litigation in federal court. The court is also worried about subjecting high-level defendants in cases like this (or in other types of large-scale litigation, like antitrust cases) to expensive and time-consuming discovery that will follow an unsuccessful motion to dismiss. But, even to the extent this is a legitimate concern, there are other ways to address it. As Justice Stephen Breyer's dissent notes, courts can limit, phase and control discovery to protect defendants while still accommodating a plaintiff's need to find out basic information about his or her case.

The reality is that this is part of a larger struggle by the Supreme Court to achieve a substantive result (limiting litigation, or limiting certain types of litigation) through procedural tools. But the court should not really have this power; matters of procedure are the province of the Federal Rules of Civil Procedure and the formal rulemaking process. In Iqbal, the court usurped that role by moving far beyond Federal Rule 8's requirement that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." My students will now have more to learn, but more unfortunately, future plaintiffs will suffer.