WLF Legal Opinion Letter
Supreme Court Tightens Pleading Standards In Ashcroft v. Iqbal
By Thomas H. Dupree, Jr.
June 19, 2009 (Vol. 18 No. 13)
When Javaid Iqbal sued former Attorney General John Ashcroft and other federal officials for alleged mistreatment he suffered while detained in the wake of 9/11, few could have envisioned that his lawsuit would result in a landmark ruling on pleading requirements.
The U.S. Supreme Court's May 18 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) will likely prove a decision of great and enduring significance, as it applies across the spectrum of civil litigation. The case holds that plaintiffs cannot survive a motion to dismiss by relying on conclusory allegations; they must instead set forth specific facts that establish "a plausible claim for relief" as viewed through the lens of "common sense." Slip op. 15. Defendants can and should rely on Iqbal in seeking dismissal in cases where the complaint is heavy on conclusions and light on facts, and where the facts that are alleged ";do not permit the court to infer more than the mere possibility of misconduct." Id. at 1950.
The Facts and the Decision.
Shortly after 9/11, Iqbal, a citizen of Pakistan and a Muslim, was arrested and detained on criminal charges of fraud in relation to identification documents. The government deemed him a person of "high interest" to the 9/11 investigation and held him at the federal detention facility in Brooklyn.
Iqbal ultimately pled guilty to the criminal charges, served a term of imprisonment, and was returned to Pakistan. He then filed a Bivens lawsuit against 53 current and former federal officials, including 19 "John Doe" prison guards, as well as Ashcroft and FBI Director Robert Mueller. He claimed that while in detention, he was mistreated in violation of his constitutional rights. With regard to Ashcroft and Mueller, he alleged that they had designed and adopted an unconstitutional policy that subjected him to harsh conditions of confinement on account of his race, religion or national origin. The district court denied Ashcroft and Mueller's motion to dismiss, which had challenged the complaint as failing to sufficiently allege their involvement in clearly established unconstitutional conduct. The Second Circuit affirmed.
The Supreme Court reversed by a 5-4 margin. In an opinion by Justice Kennedy, the Court clarified and strengthened the rule it articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). It held that the complaint did not plead sufficient facts to state a claim against Ashcroft and Mueller. The Court explained that, under Twombly, "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). Pleading facts that are "'merely consistent with'" a defendant's liability, the Court emphasized, results in a complaint that falls "'short of the line between possibility and plausibility'" of an entitlement to relief. Id. at 1949 (quoting Twombly, 550 U.S. at 557 (brackets omitted)).
The Court then clarified what it called "[t]wo working principles" on which Twombly rested. The first principle is "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. at 1949. The second is that "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. The Court explained that "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
Applying these standards to Iqbal's complaint, the Court found that it must be dismissed. The Court stated that Iqbal's allegations that Ashcroft was the "principal architect" of a discriminatory detention policy, and that Mueller was "instrumental" in adopting and executing it, were "bare assertions" that "amount to nothing more than a formulaic recitation of the elements of a constitutional discrimination claim," and thus were not entitled to be presumed true. Id. at 1952 (quotation marks omitted). The Court acknowledged that the complaint did contain factual allegations that were "consistent with [the officials'] purposefully designating detainees 'of high interest' because of their race, religion, or national origin," but "given more likely explanations" - namely the focus on Arab Muslims in the immediate aftermath of massive terrorist attacks planned and carried out by Arab Muslims - "they do not plausibly establish [a discriminatory] purpose." Id. at 1951.
The Court noted that Ashcroft and Mueller "cannot be held liable unless they themselves acted on account of a constitutionally protected characteristic." The complaint contained no factual allegation that was sufficient to plausibly suggest that they so acted. Id. at 1952.
The Impact of Iqbal
Iqbal sweeps broadly across all areas of civil litigation. The Court emphatically rejected the suggestion that the principles of Twombly were limited to the context of antitrust conspiracies, and explained that "Twombly expounded the pleading standard for 'all civil actions.'" Id. at 1955 (quoting Fed. R. Civ. P. 1). Ironically, the author of Twombly - Justice Souter - dissented in Iqbal, contending that the majority "misapplie[d] the pleading standard" of Twombly by holding plaintiffs to too high a standard. Id. at 1955 (Souter, J., dissenting, joined by Stevens, Ginsburg and Breyer, JJ.).
Since the decision, commentators and practitioners in fields ranging from employment discrimination to product liability to securities law have recognized Iqbal's likely importance. Many have complained that Iqbal's approach undercuts the idea of notice-based pleading and holds pleadings to an excessively rigorous and inappropriately substantive examination. This criticism is not well founded. The Court's approach properly recognizes and reaffirms the crucial gatekeeping role performed by the district courts. The Court emphasized the importance of district courts applying their "judicial experience" - along with their "common sense" - in disposing of baseless complaints at the proper time: before a plaintiff launches intrusive and burdensome discovery.
In this respect, the Court noted that Federal Rule of Civil Procedure 8(a)(2) - which provides that a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief" - does not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 1949-50. Requiring plaintiffs to furnish "more than a sheer possibility that a defendant has acted unlawfully," id. at 1949, is consistent with the Federal Rules and makes sense as a matter of public policy in light of the often immense demands of discovery.
Iqbal also rejects the common argument that a careful case management order can mitigate the unfairness of allowing a plaintiff to pursue discovery in support of a baseless complaint."[T]he question presented by a motion to dismiss a complaint for insufficient pleadings," the Court pointedly observed, "does not turn on the controls placed upon the discovery process." Id. at 1953. The Court had made this point in Twombly in the context of a complex antitrust case where the parties faced onerous discovery; the Court's recognition that this concern applies in civil litigation generally is therefore significant.
Defendants should be able to rely heavily on Iqbal in persuading district courts to dismiss complaints that rest on conclusory allegations and theories that simply do not accord with common sense.
Thomas H. Dupree, Jr. is a partner with the law firm Gibson, Dunn & Crutcher LLP. He served in the U.S. Department of Justice from 2007 to 2009, first as Deputy Assistant Attorney General, and then as the Principal Deputy Assistant Attorney General for the Civil Division.