Pleading Standard on All Civil Litigation
In a sweeping decision with the potential to impact every plaintiff in
a civil lawsuit, the Supreme Court announced a new pleading standard
Monday-abandoning the liberal pleading rules which have prevailed for
decades. Writing for the Court's five conservatives in Ashcroft v.
Iqbal (Click on title above for courts opinion) http://www.supremecourtus.gov/opinions/08pdf/07-1015.pdf ---
S.Ct. ----, No. 07-1015, 2009 WL 1361536 (May 18, 2009), Justice
Kennedy created a two step test which all civil complaints must now
comply with in order to survive a motion to dismiss in federal court.
Additionally, the Court held-despite a concession to the contrary by
the defendants-that a senior federal official cannot be subject to
"supervisory liability" arising from the actions of their subordinates
under the Court's decision in Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971). Justice Souter wrote the principal
dissent on behalf of the Court's four moderates, with Justice Breyer
also writing a brief dissenting opinion.
Iqbal arose in the wake of the Supreme Court's recent decision in Bell
Atlantic Corp. v. Twombly, 550 U.S. 554 (2007). Twombly required an
antitrust plaintiff to plead specific facts in their complaint in
order to survive a motion to dismiss, sparking confusion in the lower
courts regarding whether this pleading standard applies in all cases
or simply those which are likely to produce sprawling and costly
discovery. Justice Kennedy's decision resolves this question in favor
of defendants-the Twombly pleading standard now applies to all civil
suits-but Iqbal also expands upon Twombly's holding to create a two
step test governing motions to dismiss cases on the pleadings.
Under the new pleading standard announced in Iqbal, a court must first
examine the plaintiff's complaint to determine which of its
allegations are "legal" and which are "factual." Although factual
allegations remain entitled to the traditional presumption of
truthfulness, legal allegations are now deemed "conclusory," and they
play no role in determining whether or not a complaint pleads
sufficient facts to survive a motion to dismiss. After sorting
factual wheat from legal chaff, the Court then asks whether the
plaintiff's factual allegations, standing alone, "plausibly suggest"
that the defendant engaged in illegal action.
Although the suggestion that a court should not assume either party's
conclusions of law to be true is hardly inappropriate, Iqbal appears
to blur the lines between just what sort of allegations are legal in
nature, and which allegations are factual.. Iqbal's claim that former
Attorney General John Ashcroft was the "principal architect" of a
policy that subjected him to harsh conditions of confinement "solely
on account of [his] religion, race, and/or national origin" is
dismissed as a legal conclusion because it "amount[s] to nothing more
than a 'formulaic recitation of the elements' of a constitutional
discrimination claim." Conversely, Iqbal's claim that former FBI
Director Robert Mueller "arrested and detained thousands of Arab
Muslim men . . . as part of [the FBI's] investigation of the events of
September 11" was deemed to be a factual assertion. Nevertheless,
having culled the meat of Iqbal's complaint by declaring most of his
allegations to be conclusory legal assertions, the Court determined
that Iqbal's claims against Ashcroft and Mueller must be dismissed for
failure to allege facts which plausibly could lead to the conclusion
that these officials engaged in purposeful discrimination.
Despite no briefing on the question by the parties, the Court also
determined that a Bivens defendant cannot be liable on a theory of
"supervisory liability." Although the defendants' conceded in their
brief that they would be subject to liability if Iqbal could prove
that they "had actual knowledge of the assertedly discriminatory
nature [of Iqbal's detention and treatment,] and they were
deliberately indifferent to that discrimination," the Court sua sponte
determined that such liability does not exist under Bivens.
Perhaps the most disturbing aspect of the opinion, however, is dicta
suggesting that the damages remedy available under Bivens may not be
available to plaintiffs raising claims under certain constitutional
amendments. Noting that "implied causes of action are disfavored,"
the Court stated that "while we have allowed a Bivens action to
redress a violation of the equal protection component of the Due
Process Clause of the Fifth Amendment . . . we have not found an
implied damages remedy under the Free Exercise Clause." Nevertheless,
the Court "assume[d], without deciding" that First Amendment claims
are actionable under Bivens. Because this decision arose in the
Bivens context, the Court's dicta focused exclusively on implied
causes of action for a damages remedy and did not directly address the
availability of other remedies against federal officials, such as
declaratory or injunctive relief.
Justice Souter focused most of his dissent on the Court's decision to
sua sponte hold that supervisory liability is not available under
Bivens-a question he would have deferred until a future case which
presented both parties the opportunity to brief the issue. Souter-the
author of Twombly-also took issue with the new pleading standard,
disagreeing both with the majority's decision to sort many of Iqbal's
seemingly factual allegations into the legal wastebasket, as well as
its determination that a court may dismiss a case at the pleadings
stage because it is skeptical of the plaintiff's factual allegations.
Though he also joined Justice Souter's opinion, Justice Breyer wrote
separately to argue that discovery rules provide an adequate means for
judges to protect against "unwarranted litigation," and that the
majority's decision to screen cases at the pleading stage goes too
far.
Ian Millhiser
Public Policy Staff Attorney
Herbert Semmel Federal Rights Project
National Senior Citizens Law Center
1444 Eye Street NW, Suite 1100
Washington, DC 20005
(202) 289-6976 x 212
imillhiser@nsclc.org
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