Plausibility pleading revisited and revised: A comment on Ashcroft v. Iqbal

Notre Dame Law Review

Volumn 85, Issue 3, 2010, Pages 849-885

  Bone, Robert G ^a  

^a UNIVERSITY OF TEXAS SCHOOL OF LAW   (United States)

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EID: 77952349827     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (237)

1. 550 U.S. 544 (2007).
2. See id. at 556, 570.
3. See, e.g., Lonny S. Hoffman, Burn Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power Over Pleadings, 88 B.U. L. REV. 1217, 1260-64 (2008);
4. A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 433, 479-83 (2008).
5. 129 S. Ct. 1937 (2009).
6. S. 1504, 111th Cong. (2009). The Notice Pleading Restoration Act provides in full: 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).
7. Id § 2.
8. H.R. 4115, 111th Cong. (2009). The Open Access to Courts Act provides in relevant part 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.
9. Id. § 2(a).
10. Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873 (2009).
11. Moreover, even a somewhat stricter standard might be justified on cost-benefit grounds for some types of cases, at least as long it is combined with access to limited before dismissal discovery. See discussion infra Parts IV.C-D.
12. Iqbal, 129 S. Ct. at 1950.
13. Id.
14. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 550-551 (2007).
15. Id. at 566, 570.
16. In addition to the parallel conduct, the plaintiffs also relied on a statement by the CEO of Qwest Communications. Id. at 551. The Court concluded that when read in context, this statement did not have the meaning the plaintiffs attributed to it.
17. Id. at 568 n.13.
18. Id. at 564.
19. See Bone, supra note 7, at 882-890
20. See Conley v. Gibson, 355 U.S. 41, 47-48 (1957), abrogated by Twombly, 550 U.S. 544;
21. CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216 (3d ed. 2004 & Supp. 2009).
22. See Twombly, 550 U.S. at 558.
23. Id. at 555-556
24. Id. at 566.
25. Ashcroft v. Iqbal, 129 S. Ct. 1937,1942-43 (2009). Javaid Iqbal, the only plaintiff remaining on appeal, was a Pakistani Muslim. Iqbal had been arrested on criminal charges before being specially detained. He eventually pled guilty, served his sentence, and was returned to Pakistan. He filed suit after he was back in Pakistan. Id. at 1943. The lawsuit is a Bivens action based on implied constitutional claims.
26. See generally Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 390-97 (1971) (recognizing implied constitutional claims).
27. See Elmaghraby v. Ashcroft, No.04 CV 01809, 2005 WL 2375202, at *l-3, *6-8 (E.D.N.Y. Sept. 27, 2005). These detentions resulted from the massive FBI and Justice Department investigation in the wake of 9/11. The FBI detained hundreds of individuals on immigration charges and then selected 184 as "persons of high interest" to be held in maximum security separate from the regular prison population.
28. See id. at *l-2.
29. The allegations of abusive treatment included severe verbal and physical abuse, unnecessary strip and body-cavity searches, denial of needed medical care, and unjustified interference with religious activities.
30. Id. at *1, *6-8.
31. Insofar as constitutional claims are concerned, the plaintiffs also alleged violations of their First Amendment right to freedom of religion (based on interference with their religious activities as Muslims), their Fourth Amendment right to be free from unreasonable searches (based on the strip and body-cavity searches), their Fifth Amendment right to due process (based on the failure to provide hearings to determine whether continuing confinement was warranted), their Sixth Amendment right to counsel (based on the denial of access to lawyers), and their Eighth Amendment right to be free from cruel and unusual punishment.
32. Id. at *7-9.
33. Id. at *3, *8.
34. The qualified immunity doctrine insulates government officials from damages liability for constitutional violations unless they violate a clearly established constitutional right which they reasonably should have known. Also, supervisors cannot be held liable in Bivens suits for damages based on the doctrine of respondeat superior. See Iqbal, 129 S. Ct. at 1948.
35. Elmaghraby, 2005 WL 2375202, at *11-12, *28-29.
36. Id. at *10-13.
37. Id. at *21.
38. Following the district judge's decision, the United States setded with the other plaintiff, Ehab Elmaghraby.
39. See Iqbal v. Hasty, 490 F.3d 143, 147 (2d Cir. 2007), rev'd and remanded sub nom.
40. Ashcroft v. Iqbal, 129 S. Ct 1937 (2009).
41. Id. at 177-78. Aldiough the court of appeals did not address the issue directiy, the Supreme Court held that there was jurisdiction to consider the interlocutory appeal under the collateral order doctrine.
42. See Iqbal, 129 S. Ct at 1945-1947.
43. Iqbal, 490 F.3d at 170, 178.
44. Id. at 175-176 (second and third alterations in original).
45. Id. at 159 ("Rule 8(a)'s liberal pleading requirement, when applied mechanically without countervailing discovery safeguards, threatens to create a dilemma between adhering to the Federal Rules and abiding by the principle that qualified immunity is an immunity from suit as well as from liability.").
46. The court of appeals suggested that the district judge start with interrogatories and requests to admit before deciding whether to allow depositions, and that he also focus discovery on the "front-line officials" before deciding whether to involve those higher up.
47. Id. at 158.
48. Iqbal, 129 S. Ct. at 1941. The Court split along "conservative" /"liberal" lines, with Justices Souter, Breyer, Stevens, and Ginsburg dissenting. Rather than order the entry of a judgment of dismissal, however, the Court remanded to thecourt of appeals for it to decide whether to remand to the district court to allow the plaintiffs an opportunity to request leave to amend.
49. Id. at 1954. OnJuIy 28, 2009, the court of appeals decided to remand to the district court.
50. See Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d Cir. 2009). As of this writing, it appears that the case may have setded.
51. See Arar v. Ashcroft, 585 F.3d 559, 585 n.8 (2d Cir. 2009) (Sack, J., concurring in part, and dissenting in part) ("On September 29, 2009, the remaining parties in Iqbal filed a document in this Court stipulating that the appeal was to be 'withdrawn from active consideration before the Court . . . because a settlement has been reached in principle between Javaid Iqbal and defendant United States.'"
52. (quoting Stipulation With drawing Appeal from Active Consideration, Iqbal v. Hasty, No. 05-5768-cv (2d Cir. Sept. 29, 2009)).
53. Shortly after this decision, the Court also granted certiorari and remanded as to several other defendants. See, e.g. Sawyer v. Iqbal, 129 S. Ct 2431, 2431 (2009);
54. Hasty v. Iqbal, 129 S. Ct 2430, 2430 (2009).
55. Iqbal, 129 S. Ct. at 1948.
56. Id. at 1949.
57. Id. at 1944 (second alteration in original)
58. (quoting First Amended Complaint at §§ 10-11, 96, Elmaghraby v. Ashcroft, 2005 WL 2375202 (E.D.N.Y. Sept 27, 2005) (No.04 CV 01809)).
59. Id. at 1950.
60. Even if the majority rejects a liability standard based on knowledge plus deliberate indifference, as Justice Souter reads it to do, see id. at 1956-1958 (Souter, J., dissenting), the Court's opinion still suggests that "some inference of wrongful intent" might be drawn from evidence that Ashcroft and Mueller "condoned" their subordinates' discriminatory treatment of detainees.
61. Id. at 1952 (majority opinion).
62. Id. at 1951 ("These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a 'formulaic recitation of the elements' of a constitutional discrimination claim . . . ."
63. (quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
64. Id. at 1952.
65. Id. at 1951 ("It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks [of September 11] would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.").
66. Justice Souter also takes the majority to task for its substantive holding, that supervisors can be liable only if they act with discriminatory intent themselves. Souter accuses the majority of reaching the substantive issue without crediting the defendants' concession that knowledge plus deliberate indifference would suffice and without the benefit of briefing and oral argument
67. See id. at 1956-1958 (Souter, J., dissenting).
68. But he also notes that the complaint without the key allegations would still be deficient under a knowledge and deliberate indifference standard.
69. See id. at 1958.
70. See id. at 1960.
71. Id. at 1960-1961.
72. Justice Souter concluded that "[t]aking the complaint as a whole, it gives Ashcroft and Mueller 'fair notice of what the . . . claim is and the grounds upon which it rests.'"
73. Id. at 1961
74. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
75. See id. at 1953 (majority opinion). This holding was hardly surprising. See Bone, supra note 7, at 881 (noting that lower courts have answered questions about the extent of Twombly's holding "in favor of a more general application").
76. See Iqbal, 129 S. Ct. at 1953 (referring to "[o]ur rejection of the careful-casemanagement approach").
77. See id. at 1954 ("Because respondent's complaint is deficient under Rule 8, he is not entitied to discovery, cabined or otherwise.").
78. See infra Part III.
79. For just a few examples of lower courts applying the two-pronged approach after Iqbal, see Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir. 2009);
80. Chao v. Ballista, 630 F. Supp. 2d 170, 177-79 (D. Mass. 2009);
81. In re Novagold Res. Inc. Sec. Litig., 629 F. Supp. 2d 272, 284 (S.D.N.Y. 2009).
82. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007).
83. See id.
84. See Iqbal, 129 S. Ct. at 1951.
85. Id. at 1949.
86. Id.
87. Id. at 1951 (quoting Twombly, 550 U.S. at 555).
88. Id. at 1944 (alteration in original) (quoting First Amended Complaint, supra note 38, §§ 10-11, 96).
89. The words "know" and "condone," for example, are not just technical legal terms. They are part of ordinary vocabulary used to describe mental states, and their legal meaning depends to a large extent on their ordinary meaning. Thus, these words in the complaint convey factual information. Moreover, it is quite sensible in a situation like this for a pleader to use the same descriptors that the law employs in order to be clear about what is being alleged, especially since there are few, if any, alternatives available that convey the same meaning as clearly.
90. This would include statements that contain too much legal terminology and not enough factual content. The fatal defect in such an allegation cannot be its use of legal terminology alone. It makes no sense to penalize a plaintiff for using legal terms if the allegation is otherwise factually sufficient Therefore, the defect must have to do with the factual generality of the allegation.
91. See Iqbal, 129 S. Ct at 1960-1961.
92. FED. R. Ov. P. Form 11. Form 11 was made famous by Twombly, which, confusingly for some, approved the Form at the same time as endorsing the plausibility standard. Before the recent restyling amendments, Form 11 was Form 9 and included an actual date ("June 1, 1936"), an actual place ("in a public highway called Boylston Street in Boston, Massachusetts"), and an additional phrase at the end describing what the plaintiff was doing at the time ("who was then crossing said highway").
93. FED. R. Ov. P. Form 9 (2006) (repealed 2007).
94. See FED. R. Qv. P. 84 ("The forms in the Appendix suffice under these rules . . . .").
95. Justice Souter's treatment of the allegations in Iqbal provides another example. He argues that the key allegations are just as specific as other allegations the majority treats as factual. See Iqbal, 129 S. Ct at 1961 (Souter, J., dissenting).
96. In particular, the allegation that "'[t]he policy of holding post-September-llth detainees in highly restrictive conditions of confinement until they were "cleared" by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001" is, according to Souter, just as general as the key allegations that the majority condemns.
97. Id. (quoting First Amended Complaint, supra note 38, § 69). Therefore, if this allegation is factual, as the majority assumes, the key allegations must be factual too.
98. See id.
99. CHARLES E. CLARK, HANDBOOK THE LAW OF CODE PLEADING 138 (1928).
100. See id. at 150, 153-55. Also, alleging "evidential facts" was forbidden, although this was considered a much less serious transgression than alleging a conclusion of law.
101. See id. at 152-153
102. See id. at 150.
103. See Robert G. Bone, Mapping the Boundaries of a Dispute: Conceptions of Ideal Lawsuit Structure from the Field Code to the Federal Rules, 89 COLUM. L. REV. 1, 21-22 (1989).
104. See, e.g., JOHN NORTON POMEROY, CODE REMEDIES §§ 407-423 (5th ed. 1929).
105. See CLARK, supra note 65, at 2-3. For example, courts during the code period condemned as legal conclusions an allegation that the plaintiff as assignee was "holder" of a bond, that the defendant received money from the plaintiff "in trust" for certain purposes, and that the plaintiff was "entitled" to possession of certain property.
106. See id. at 153-155 (giving these and numerous other examples).
107. POMEROY, supra note 69, § 423, at 640 ("[T]he allegations must be of dry, naked, actual facts, while the rules of law applicable thereto, and the legal rights and duties arising therefrom, must be left entirely to the courts.").
108. See Walter Wheeler Cook, 'Facts' and 'Statements of Fact, ' 4 U. CHI. L. REV. 233, 239 (1936) [hereinafter Cook, 'Facts'];
109. Walter Wheeler Cook, Statements of Fact in Pleathng Under the Codes, 21 COLUM. L. REV. 416, 417 (1921) [hereinafter Cook, Statements] ;
110. see also CLARK, supra note 65, at 155 ("But facts do not easily disentangle themselves from conclusions or from details.").
111. Cook, Statements, supra note 72, at 417.
112. See CLARK, supra note 65, at 153-55 (describing inconsistent results);
113. see also 5 WRIGHT & MILLER, supra note 16, §1218, at 265 (noting the "evanescent judicial distinctions" and "ultimate calcification," as well as "traps for the unwary" and "tactical advantages" unrelated to the merits, that the code pleading rules created).
114. See Cook, 'Facts,' supra note 72, at 238-39 (noting that the process involves "select[ing] from among these infinitely varied aspects those which for some reason or other we are going to talk about" and then interpreting "the selected 'data'... so as to bring them under some category");
115. see also CLARK, supra note 65, at 155 (discussing the problem of disentangling facts and evidence).
116. See Cook, 'Facts,'supra note 72, at 239.
117. See id. at 241-243
118. Id. at 243. 79 Cook, Statements, supra note 72, at 419.
119. Id.
120. See id. at 420.
121. See id. at 421;
122. see also Cook, 'Facts,'supra note 72, at 244 (noting that the difference is "merely one of degree").
123. Cook, Statements, supra note 72, at 422. Cook was firmly committed to notice pleading, so he advocated a pleading rule that required only as much specificity as was needed to give reasonable notice to the defendant and the court of "the real nature of the claim or defense." Id. He also strongly favored official forms as guides to pleading. See id. at 423;
124. see also CLARK, supra note 65, at 156-57 (focusing on the notice function); Cook,
125. 'Facts,'supra note 72, at 245-246 (discussing the benefits of the forms).
126. Charles Clark, the chief architect of the Federal Rules, put it this way: By omitting any reference to "facts the Federal Rules have avoided one of the most controversial points in code pleading. As Professor Moore has so apdy stated, "The federal courts are not hampered by the morass of decisions as to whether a particular allegation is one of fact, evidence, or law." This departure from the traditional code-pleading requirement has been liberally applied by the courts and lauded by the legal writers. CHARLES E. CLARK ET AL., HANDBOOK OF THE LAW OF CODE PLEADING 242-243 (2d ed. 1947) (footnotes omitted)
127. (quoting 1 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE 553 (1938));
128. see also Edson R. Sunderland, The New Federal Rules, 45 W. VA. L.Q. 5, 12 (1938) (noting that the FRCP eliminate any mention of facts because "courts have been trying for five hundred years to find 'facts' and nobody has ever been able to draw a line between what were and what were not 'facts'").
129. FED. R. QV. P. 8(a)(2). For the code provision, see supra note 65 and accompanying text.
130. See CLARK, supra note 84, at 241-245
131. See 5 WRIGHT & MILLER, supra note 16, § 1218;
132. see also 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 8.04(2), at 35 (3d ed. 2009) (stating that conclusory allegations are permitted by the Federal Rules, but "sufficient factual allegations must be pleaded along with the conclusions of law to give fair notice to the opposing party").
133. See, e.g., Carr v. Sharp, 454 F.2d 271, 273 (3d Cir. 1971);
134. Magellan Int'l Corp. v. Salzgitter Handel GmbH, 76 F. Supp. 2d 919, 927 (N.D. Ill. 1999).
135. See, e.g., 5B WRIGHT & MILLER, supra note 16, §1357, at 544 ("This occasional juthcial reliance on some of the nomenclature of the code pleathng regime, such as 'facts' and 'conclusions,' reflects the thfficulty of phrasing in abstract terms a rule of construction of pleadings that is relatively simple in actual operation.") (footnotes omitted).
136. Id. § 1357, at 544-553 ("[M] any federal courts have made it clear that more detail often is required than the bald statement by the plaintiff that she has a valid claim of some legally recognizable type against the defendant. . . . [T] he court will not accept conclusory allegations concerning the legal effect of the events the plaintiff has set out if these allegations do not reasonably follow from the pleader's description of what happened, or if these allegations are contradicted by the description itself.") (footnotes omitted).
137. Or inferences that do not reasonably follow from or are contradicted by more detailed descriptions in the complaint.
138. See id.;
139. 2 MOORE, supra note 87, § 12.34(1) (b).
140. Of course, a 12(b) (6) motion is always available to dismiss a suit when there is no claim as a matter of law that could give the plaintiffs the relief they seek. For example, a plaintiff might tell a detailed story about how his teacher's awful teaching methods ruined his life, but the complaint will still be dismissed because there is no claim for ordinary educational malpractice. See, e.g., ViIl. Cmty. Sch. v. Adler, 478 N.Y.S.2d 546, 547 (City Civ. Ct. 1984). The situation that concerns us is very different from this. Our focus is on cases in which there is a recognized legal claim but the plaintiff has not adequately alleged it
141. I focus here on the golden age of notice pleading during the 1960s and 1970s. It is worth mentioning, however, that starting in the early 1980s, federal judges began to impose stricter requirements in an effort to screen frivolous suits in some types of cases, and some judges continued to do so despite contrary Supreme Court holdings. See Swierkiewicz v. Sorema NA., 534 U.S. 506, 510-15 (2002);
142. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167-69 (1993). It would not be surprising if these judges used the legal-conclusion/factual-allegation distinction more aggressively during this later period.
143. The legal-conclusion/factual-allegation dichotomy would be relatively easy to apply in practice if the category "legal conclusion" were limited to allegations that simply insert "plaintiff" and "defendant" into a legal proposition otherwise stated in some recognizably canonical form. Examples might include "the defendant acted negligendy" when the claim is for negligence, or "the defendants conspired" when the claim is for an antitrust conspiracy. If legal conclusions were limited to this type of statement, however, the dichotomy would do little work as a practical matter. The key Iqbal allegations, for instance, are not straightforward canonical statements of the law. They allege knowledge and other states of mind linked to a discriminatory policy described in some detail elsewhere in the complaint and even refer to more particular types of involvement by Ashcroft and Mueller. See supra note 59 and accompanying text.
144. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557-560 (2007).
145. See Neitzke v. Williams, 490 U.S. 319, 327 (1989) ("What Rule 12(b)(6) does not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations. District court judges looking to dismiss claims on such grounds must look elsewhere for legal support.").
146. In Twombly, for example, the complaint stated that the defendants "'have entered into a contract, combination or conspiracy to prevent competitive entry into their... markets and have agreed not to compete with one another.'" Twombly, 550 U.S. at 565 (quoting Complaint at ¶ 51,
147. Twombly v. Bell Ad. Corp., 313 F. Supp. 2d 174 (S.D.N.Y. 2003) (No.02 Civ. 10220)). If the Court had to accept all allegations as true, it would have had no choice but to conclude that a plausible claim of conspiracy was stated.
148. See generally supra notes 72-83 and accompanying text (discussing Cook's realist critique).
149. See, e.g., Edward A. Hartneu, Taming Twombly, Even After Iqbal, 158 U. PA. L. REV. 473, 491-494 (2010).
150. Not only does one need a definition of "too closely" to make this formulation work, but more importandy, there is no sensible reason why the amount of legal content alone should make the difference and therefore no policy to guide determinations of what is "too close."
151. See Cook, Statements, supra note 72, at 422-423 (describing how much factual particularity should be required "according to notions of fairness and convenience" considered in light of the goals that a pleading system should serve).
152. See CLARK, supra note 65, at 157 (noting that "generalities of allegation should not be objectionable in themselves, so long as reasonably fair notice of the pleader's cause of action is given.");
153. Cook, Statements, supra note 72, at 422-423 (noting that only as much specificity is needed to give reasonable notice to the defendant and the court of "the real nature of the claim or defense").
154. See supra notes 52-53 and accompanying text
155. Ashcroft v. Iqbal, 129 S. Ct 1937, 1961 (2009) (Souter, J., dissenting) ("Taking the complaint as a whole, it gives Ashcroft and Mueller 'fair notice of what the . . . claim is and the grounds upon which it rests.'"
156. (quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original))).
157. It is worth emphasizing that the thscussion in the text focuses on pleathng. The fact-law thchotomy operates in other legal contexts, such as thvithng decisionmaking responsibility between judge and jury and defining the scope of appellate review. The thchotomy has a core of meaning that is useful in each of these contexts, and as in pleathng, its application to grey areas depends on the thstinctive policies at stake.
158. I develop this definition more fully in Bone, supra note 7, at 916-19. See also Robert G. Bone, Modeling Frivolous Suits, 145 U. PA. L. REV. 519, 529-33 (1997) (thscussing the problem of defining a "frivolous suit" and offering a definition that depends on the idea of a suit lacking merit as an objective matter). 107 See Bone, supra note 7, at 917.
159. See, e.g., Keith N. Hylton, When Should a Case be Dismissed? The Economics of Pleading and Summary Judgment Standards, 16 SUP. CT. ECON. REV. 39, 41 (2008) ("In general, pleading standards should vary with the evidentiary demands of the associated legal standards and the social costs of litigation.").
160. See, e.g., Hartnett, supra note 99 (manuscript at 17-18);
161. Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV. (forthcoming 2010) (manuscript at 24-35), available at http://papers.ssrn.com/sol3/papers. cfm?abstract-id=1442786 (deriving pleading principles from Twombly and Iqbal treated as mutually consistent decisions).
162. Distinguishing different levels of screening and pleading strictness through case interpretation is a tricky business. The flexibility and open-ended nature of the plausibility concept only compounds the problem by making it more difficult to nail down precisely how the concept is being applied.
163. Of course, the judge is likely to conceive of a merits threshold in rough qualitative terms rather than numerical probabilities. It is worth mentioning that two commentators have argued for a fifty percent probability cutoff. See Warren F. Schwartz & C. Frederick Beckner III, Toward a Theory of the "Meritorious Case": Legal Uncertainty as a Social Choice Problem, 6 GEO. MASON L. REV. 801, 816-819 (1998).
164. By contrast, if the decision is to screen only cases that are virtually certain to lose, the judge would need less factual detail to make the necessary determination, and as a result the pleading standard would tolerate allegations at a higher level of generality.
165. This allegation is based on, but a bit more detailed than, the allegation in Form 11 appended to the Federal Rules of Qvil Procedure. See FED. R. CIV. P. Form 11. In fact, it is very similar to the original Form 9 version before the restyling amendments. See supra note 62 and accompanying text.
166. To be sure, the plaintiff states that the defendant acted "negligendy," but negligence is something that must be proved by showing more specific facts.
167. See Ashcroft v. Iqbal, 129 S. Ct 1937, 1940 (2009) ("[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense.").
168. This is not the reason the Twombly Court actually gave for treating the general allegations of agreement as conclusory. Rather the Court reasoned that the best interpretation of the complaint as a whole showed that these allegations were meant to be conclusions. See supra notes 52-53 and accompanying text. That is not surprising because the Twombly Court did not apply a thick screening model. See infra Part rV.B.2., where I consider how allegations like these would be treated in a thin screening model.
169. Requiring more detail for facts that are private information of the defendant puts the plaintiff in a kind of Catch-22. She must allege more detail before discovery, but the detail she must allege is very difficult to obtain without discovery. This feature of the problem means that the thick screening model risks high social costs by screening strong meritorious suits as well as weak ones. See infra Part IV.C.
170. The judge might still demand more facts, however, if the merits threshold were set very high.
171. It is significant I believe, that many cases decided after Iqbal classify allegations as conclusory when they involve state of mind or other private information that is likely to be proved circumstantially and the plaintiff does not allege enough of the circumstantial facts. See Cafaro v. HMC Int'l, LLC, No.07-2793, 2009 WL 1622825, at *3-5 (D.N.J. June 10, 2009) (finding that statements alleging defendant "knowingly and substantially assisted" another party's wrongdoing and was "actually ... aware" of the wrongdoing were conclusory);
172. Halderman v. City of Iberia, No. 094049-CV, 2009 WL 1912531, at *2 (W.D. Mo. June 1, 2009) (finding allegation of conspiracy conclusory and unsupported by factual allegations);
173. Mohammad v. N.Y. State Higher Educ. Servs. Corp., No. 08-CV-4943, 2009 WL 1514635, at *4 (E.D.N.Y. June 1, 2009) (finding statements that collection actions reinitiated after twenty years were resumed due to plaintiff's race conclusory and unsupported by accompanying factual allegations).
174. But see Tyree v. Zenk, No. 05-CV-2998, 2009 WL 1456554, at *7 (E.D.N.Y. May 22, 2009) (applying Iqbal to conclude that circumstantial evidence of defendants being in cahoots meets plausibility requirement with factual allegations). Admittedly, and as Justice Souter recognizes, the Iqbal majority accepts some general allegations that seem rather similar to the state-of-mind allegations it rejects. In particular, the Court accepts as true the allegation that "'[t]he policy of holding post-September11th detainees in highly restrictive conditions of confinement until they were "cleared" by the FBI was approved by Defendants ASHCROFT and MUELLER in dis- eussions in the weeks after September 11, 2001.'"
175. Iqbal, 129 S. Ct at 1951 (alteration in original) (quoting First Amended Complaint, supra note 38, ¶ 69). This allegation refers to private information of the defendants, so one might have expected the Court to demand more factual support if I am correct about its applying a thick screening model. However, three points are critical. First, the allegation is difficult to label as a "legal conclusion" because what it says is not closely enough connected to a legal element (although it might still be characterized as too "conclusory"). While all legal conclusions are general factual allegations, not all general factual allegations can be classified as legal conclusions. Second, unlike the allegation of agreement in Twombly, this allegation rings true on its face. It would have been reasonable for Ashcroft and Mueller to approve a policy of restrictive confinement given the 9/11 events. Third, it is easier to imagine how this allegation would be proved than it is to imagine how the mental-state allegations in the Iqbal complaint would be proved.
176. Iqbal, 129 S. Ct at 1949 (emphasis added).
177. Id.
178. Twombly, 550 U.S. at 556 (emphasis added). I count no fewer than seven places in the opinion where the Court uses the word "suggest" or a variation to state the plausibility standard. See id. at 556 ("suggest"), 557 ("suggestion," "plausibly suggesting," and "suggesting"), 562 ("suggests"), 566 ("plausible suggestion"), 569 ("suggested"). The Court also notes that the standard, rather than imposing a probability of success requirement, "simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement."
179. Id. at 556.
180. This passage does refer to a reasonable expectation, but the expectation is about discovery, not liability. And the fact that the Court juxtaposes it to the probability of trial success sharpens the contrast
181. See Iqbal, 129 S. Ct at 1949 (quoting Twombly, 550 U.S. at 556).
182. Twombly, 550 U.S. at 556 (noting that "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of the facts alleged is improbable, and that a recovery is very remote and unlikely.'"
183. (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974))).
184. See Iqbal, 129 S. Ct at 1959 (Souter, J., dissenting).
185. Bone, supra note 7, at 918-919
186. See id. at 918.
187. See id. at 885-888
188. See id. at 884-885
189. See Bell Ad. Corp. v. Twombly, 550 U.S. 544, 555 (2007);
190. id. at 561-562 ("[T]he complaint does not set forth a single fact in a context that suggests an agreement"). 131 Within the ordinary baseline of investigation and detention activities, it is reasonable to assume that government officials almost always behave responsibly and lawfully.
191. See Twombly, 550 U.S. at 564-569 (taking account of publicly available background information about the history and structure of the telecommunications market).
192. Iqbal v. Hasty, 490 F.3d 143, 175-76 (2d Cir. 2007), rev'd and remanded sub nom.
193. Ashcroft v. Iqbal, 129 S. Ct 1937 (2009).
194. Id. at 175;
195. see also id. at 166 ("Even as to Ashcroft and Mueller, it is plausible to believe that senior officials of the Department of Justice would be aware of policies concerning the detention of those arrested ... in the aftermath of 9/11 and would know about, condone, or otherwise have personal involvement in the implementation of those policies.").
196. For endorsement of the court of appeals' analysis on similar grounds, see Stephen B. Burbank, Pleading and the Dilemmas of "General Rules, " 2009 Wis. L. REV. 535, 556-557
197. Twombly, 550 U.S. at 555.
198. See id. at 557 n.5 (stating that the plausibly standard marks a line "between the factually neutral and the factually suggestive");
199. see also Ashcroft, 129 S. Ct at 1960 (Souter. J., dissenting) (stating that in Iqbal, by contrast to Twombly, "the allegations in the complaint are neither confined to naked legal conclusions nor consistent with legal conduct" and concluding that the Iqbal "complaint therefore contains 'enough facts to state a claim to relief that is plausible on its face'" (quoting Twombly, 550 U.S. at 570)). It is also significant that Twombly makes a point of noting that allegations of parallel conduct might be sufficient when the background circumstances make the conduct harder to explain in competitive terms.
200. See Twombly, 550 U.S. at 556 n.4.
201. In Iqbal, the allegations hardly describe proper law enforcement behavior and as the court of appeals in Iqbal v. Hasty recognized, the background circumstances are not neutral with respect to Ashcroft's and Mueller's involvement See Iqbal, 490 F.3d at 165-166
202. Two additional points deserve special mention. First, although I believe the best interpretation is to associate Iqbal with a thick screening model, it is also possible that the Court applies a thin screening model with a high confidence threshold. This interpretation would be consistent with a focus on the likelihood of trial success if trial success were used as a measure of confidence-as in the stronger the case appears, the greater the confidence that it is not meritless. Nothing much turns on this distinction, however, because a thin screening model with a high confidence threshold, although different in theory, operates like a thick screening model in practice. Moreover, on either interpretation of Iqbal, the core difference is the same. In Iqbal, the Court dismissed based on the weakness of the case, while in Twombly, the Court dismissed based on the facial implausibility of the complaint Second, the Iqbal Court's discussion of the substantive standard for supervisory liability confuses matters a bit The Court holds that Ashcroft and Mueller are not liable unless they themselves had a discriminatory purpose. See Iqbal, 129 S. Ct at 1949. Plaintiffs will usually prove discriminatory purpose circumstantially, of course, but the Court does not offer much insight into what constitutes an adequate circumstantial case against Ashcroft and Mueller. This can affect evaluation of the complaint at the pleading stage. The stronger the circumstantial case that is required, the more might be demanded from a complaint However, the Court mentions that evidence showing that the defendants "condoned" the discriminatory practices of their subordinates might be enough to support an inference of discriminatory intent See id. at 1952. Furthermore, as the court of appeals observed in Iqbal v. Hasty, the complaint's allegations coupled with the background circumstances suggests at least that much. See Iqbal, 490 F.3d at 175. In any event, a thin screening model with a low confidence threshold is not consistent with fine parsing of the complaint That is the sort of thing one would expect from a court implementing a thick screening model.
203. I discuss these problems in my previous work. See Bone, supra note 7, at 926-28, 932-33. I summarize the highlights in the text and apply the analysis to the Iqbal case.
204. We actually know very little about the effects of Iqbal and Twombly on dismissal rates in civil rights and other types of litigation. One empirical study based on published opinions found an increase in dismissal rates after Twombly, and again after Iqbal, with the strongest impact observed in constitutional civil rights suits. Patricia W. Hatamyar, the Too of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV. 553, 556 (2010).
205. By contrast, a preliminary study of district court docket entries conducted by the Administrative Office of the United States Courts revealed little effect on dismissal rates. See ADMIN. OFFICE OF THE U.S. COURTS, MOTIONS TO DISMISS: INFORMATION ON COLLECTION OF DATA, available at http://www.uscourts. gov/rules/ Motions%20to%20Dismiss.pdf. These two studies provide useful information, but they also suffer from methodological limitations that are likely to skew their results. The Federal Judicial Center is currendy conducting a more systematic and reliable empirical study, and we should know more about the effects of Twombly and Iqbal after that study is completed.
206. Cf. Gomez v. Toledo, 446 U.S. 635, 638-39 (1980) (noting that Section 1983 "reflects a congressional judgment that a 'damages remedy against the offending party is a vital component of any scheme for vindicating cherished constitutional guarantees'" and that the statute was "enacted to aid in the 'preservation of human liberty and human rights"
207. (quoting Owen v. Qty of Independence, 445 U.S. 622, 636, 651 (1980))).
208. This is a rough way to summarize the analysis. More precisely, a strict pleading system should be evaluated for its impact on error costs and process costs. See Bone, supra note 7, at 910-15 (providing a more complete and rigorous
209. See id. at 912-914 (explaining "rights-based balancing").
210. See Iqbal, 129 S. Ct at 1953. More specifically, the doctrine recognizes that officials who are distracted by the burdens of litigation have less time to devote to government service, and that officials who are concerned about the burden of future litigation and the risk of personal liability might shy away from perfecdy lawful action for fear that it might precipitate unfounded litigation.
211. See id.
212. See Pearson v. Callahan, 129 S. Ct 808, 816 (2009) ("Qualified immunity is applicable unless the official's conduct violated a clearly established constitutional right of which a reasonable person would have known.").
213. See, e.g., Hunter v. Bryant 502 U.S. 224, 227 (1991);
214. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985).
215. See Iqbal, 129 S. Ct at 1949-1950. The Court insists that its analysis is just what Twombly requires, and as the Court also tells us, Twombly's analysis applies to all cases subject to Rule 8.
216. Id. at 1953.
217. See supra notes 27, 33, and accompanying text This is similar to the proposal I develop in my Twombly article, which recommends limited access to before-screening discovery. See Bone, supra note 7, at 932-935
218. In fact, while the appeals were pending, the plaintiff in Iqbal had access to discovery against other defendants, which might have revealed information helpful in fleshing out the allegations against Ashcroft and Mueller. This strategy, however, depends on the plaintiff suing multiple defendants and the claims against some of the defendants surviving dismissal. Many lawsuits do not fit this profile.
219. See Iqbal, 129 S. Ct at 1953
220. (citing Bell Ad. Corp. v. Twombly, 550 U.S. 544, 559 (2007)).
221. See Bone, supra note 7, at 898-900;
222. Robert G. Bone, Who Decides ? A Critical Look at Procedural Discretion, 28 CARDOZO L. REV. 1961, 2016-23 (2007).
223. However, the judge must be willing to grant summary judgment based on the results of substantially truncated discovery and resist the temptation to allow plaintiffs more discovery in the hope that something might eventually be uncovered.
224. See Iqbal, 129 S. Ct at 1961-1962 (Breyer, J., dissenting).
225. It is worth mentioning that, if these concerns get weight, there is a countervailing concern that perhaps should get some weight as well. The Iqbal case provides an opportunity for the public to learn about serious abuses in the wake of 9/11 and to hold government officials accountable. It is possible that transparency and accountability can be achieved in other ways, such as through a government investigation, but if the alternatives are limited, then civil adjudication could be the most promising means to accomplish the result. Of course, one would still demand a viable case, but the additional value of the case as an instrument to investigate and hold officials accountable might justify a more lenient approach at the pleading stage.
226. See Bone, supra note 7, at 900-909
227. Depending on the nature of the fairness objection, one might be able to reduce the risk of screening meritorious suits even further by giving the plaintiff access to very limited prescreening discovery for some types of cases, such as those where information-access obstacles are extremely high-at least as long as the discovery is not so burdensome as to trigger serious fairness concerns.
228. See Bone, supra note 7, 930-36;
229. see also Burbank, supra note 134, at 559 ("The Twombly Court ... was not well positioned institutionally to evaluate even the procedural costs and benefits of tightening the pleading screws on plaintiffs, even in the isolated substantive-law context involved in the case."). Ironically, the Supreme Court has repeatedly made this point itself, holding that federal courts have no common law power to make heightened pleading rules on their own and that this must be done through the formal rulemaking process or by Congress.
230. See Bell Ad. Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007);
231. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002);
232. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). If I am correct that the Iqbal Court applies a thick screening model, then the Court ignores these earlier holdings without admitting that it is doing so.
233. The Rules Enabling Act, 28 U.S.C. §§ 2072-2073 (2006), vests the authority to make procedural rules in the United States Supreme Court and creates a multistage rulemaking process with opportunities for public input A proposed amendment is first considered by the Advisory Committee on Civil Rules and then works its way up the rulemaking pyramid.
234. For these two bills, see supra notes 5 & 6 and accompanying text.
235. See H.R. 4115, 111th Cong., § 2 (2009) ("The provisions ... govern according to their terms except as otherwise expressly provided ... by amendments made after the date of enactment of this section to the Federal Rules of Civil Procedure....");
236. S. 1504, 111th Cong., § 2 (prefacing the bill text with: "Except as otherwise provided ... by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act").
237. For an account of the relative advantages of the formal rulemaking process, see Robert G. Bone, The Process of Making Process: Court Rulemaking Democratic Legitimacy, and Procedural Efficacy, 87 GEO. L. J. 887, 920-926 (1999).