Eight Months of Iqbal: Part 2

In my earlier post, I argued that the Supreme Court’s approach to pleading in Twombly and Iqbal is not necessarily inconsistent with the pre-Twombly notice-pleading framework. On a correct reading, the admittedly-problematic plausibility inquiry is not a basis for disregarding allegations in a complaint. When a complaint provides non-conclusory allegations for each element of a claim for relief, those allegations must be accepted as true, without regard to their “plausibility.”

There is no doubt, however, that the lower federal courts are paying a lot of attention to Twombly and Iqbal. My article The Pleading Problem ranks Supreme Court decisions in terms of the frequency with which they have been cited by federal courts. The figures in my current draft were as of June 30, 2009 (they will be updated in the final version). But even then, Twombly was #17 all-time with over 14,000 citations by federal courts. As of today, its count is nearly 22,000, which will place it very comfortably in the top-10. Iqbal is just getting started, but over the last eight months it has been cited at a remarkable rate of over 600 decisions per month.

That said, an opinion’s citation frequency alone doesn’t tell you what courts are actually doing with that opinion. That’s the far more interesting question. There are certainly federal courts whose approaches to pleading after Iqbal reflect a much stricter standard. Jon Siegel identified a slip-and-fall case in an earlier Concurring Opinions post, Alexi Lahav has noted some others on the Mass Tort Litigation Blog, and I mention a few in my forthcoming article. In this post, I want to flag some cases where the lower federal courts are at least on the right track.

One example is the Third Circuit’s decision in Fowler v. UPMC Shadyside [578 F.3d 203], a disability discrimination case. Interestingly, the opinion starts by stating that the Supreme Court’s unanimous 2002 decision in Swierkiewicz — a full-throated endorsement of classic notice-pleading principles — was effectively overruled by Iqbal. But what follows in Fowler is vintage notice-pleading, entirely consistent with Swierkiewicz. The Third Circuit accepted Fowler’s allegations as true, without regard to whether they were “plausible,” and chastised the district court for taking a stricter approach. As to the complaint’s allegation that Fowler was disabled, the Third Circuit wrote:

At this stage of the litigation, the District Court should have focused on the appropriate threshold question — namely whether Fowler pleaded she is an individual with a disability. The District Court and UPMC instead focused on what Fowler can “prove,” apparently maintaining that since she cannot prove she is disabled she cannot sustain a prima facie failure-to-transfer claim. A determination whether a prima facie case has been made, however, is an evidentiary inquiry — it defines the quantum of proof plaintiff must present to create a rebuttable presumption of discrimination. 

The Third Circuit also accepted the plaintiff’s allegations that she was “terminated because she was disabled” and that UPMC discriminated against her by failing to “transfer or otherwise obtain vacant and funded job positions” for her. It held that these were “‘more than labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action'” and concluded: “We have no trouble finding that Fowler has adequately pleaded a claim for relief under the standards announced in Twombly and Iqbal.”

There are also post-Iqbal decisions that affirm dismissals but do so in a way that is faithful to pre-Twombly principles. In Brooks v. Ross [578 F.3d 574], the Seventh Circuit found the following allegation to be insufficient:

Plaintiff is informed, believes and alleges that the Defendants while acting in concert with other State of Illinois officials and employees of the Attorney General’s Office, Department of Corrections and Prisoner Review Board did knowingly, intentionally and maliciously prosecute Plaintiff and Ronald Matrisciano in retaliation for Plaintiff and the said Ronald Matrisciano exercising rights and privileges under the Constitutions and laws of the United States and State of Illinois.  

The Seventh Circuit’s reasoning was founded on notice principles, not the newfound plausibility inquiry. It wrote:

[T]his paragraph fails under Iqbal, because it is merely a formulaic recitation of the cause of action and nothing more. It therefore does not put the defendants on notice of what exactly they might have done to violate Brooks’s rights under the Constitution, federal law, or state law.

Indeed, Brooks explicitly rejected the argument “that Twombly had repudiated the general notice-pleading regime of Rule 8″ and concluded: “This court took Twombly and Erickson together to mean that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8. This continues to be the case after Iqbal.”

As in Twombly and Iqbal, one can certainly question whether the key allegation in Brooks should have been disregarded as a mere legal conclusion — i.e., just a “formulaic recitation of the cause of action and nothing more.” But such questions were present even under a notice-pleading regime. Notice pleading was never a blank check. No court would have been forced to accept as true an allegation that “the defendant violated the plaintiff’s legal rights in a way that entitles the plaintiff to relief.” So there always lurked the question, what “notice” was required? As Judge, Dean & Federal Rules architect Charles Clark observed, a notice-pleading framework is not inherently a lenient one. It depends on what “content [is] given to the word ‘notice.'” Likewise, a pleading standard that allows courts to disregard conclusory allegations (step 1 of the post-Iqbal framework) is not inherently a strict one. It depends on how “conclusory” is defined. Twombly/Iqbal‘s recognition that conclusory allegations need not be accepted as true does not necessarily mean the end of notice pleading. It merely cloaks the inquiry in different doctrinal garb.

The silver lining might be this: Before Twombly and Iqbal, lower courts’ handling of this issue was often able to fly under the radar. Indeed, many of the recent empirical studies on the effect of Twombly and Iqbal reveal remarkably high dismissal rates even before Twombly. After Twombly and Iqbal, however, the world is watching. And many judges, commentators, legislators, and rulemakers are giving more thought than ever to what pleading standards ought to look like.

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2 Responses

  1. TJ says:

    I am glad that someone is separating out the “conclusory” concept from the “plausibility” concept. But I don’t think this does the trick. Suppose I make a very concrete and particularized allegation that alien UFOs abducted me at the personal instruction of President Obama. There is no possible way to dismiss the complaint except for lack of “plausibility,” as even the dissent in Iqbal recognizes. The only question is how low this plausbility bar is.

    The strange thing here is that, before Twombly, every court of appeals that I am aware of had opinions stating that “conclusory” allegations in a complaint may be disregarded, though Form 11 itself has a conclusory allegation.

  2. Adam Steinman says:

    Thanks for the comment, TJ. On the hypo about Obama ordering your alien abduction, I think the answer is that this is not the kind of “plausibility” that the post-Iqbal framework is talking about. Kennedy’s Iqbal opinion makes clear that the problem with the Twombly and Iqbal allegations was their “conclusory nature,” not that they were “extravagantly fanciful” or “too chimerical to be maintained.” One proposal (from David Shapiro) that could deal with the alien-abduction scenario would be to recognize that courts can disregard allegations where “the rules governing judicial notice require a determination that the allegation is not credible.” (see http://prawfsblawg.blogs.com/prawfsblawg/2010/01/how-do-you-solve-a-problem-like-iqbal.html). And Justice Souter suggests in his Iqbal dissent that even non-conclusory allegations could be disregarded if they’re of the little-green-men variety.

    On your point about Form 11: to paraphrase a former lawyer-president, it depends on what the meaning of “conclusory” is. I elaborate on this issue in my forthcoming article (http://ssrn.com/abstract=1442786) and in my responses to some of the comments on my earlier post (http://concurringopinions.com/archives/2010/01/eight-months-of-iqbal.html). I think Form 11’s identification of the underlying liability-generating event (the collision) along with the defendant’s role in the event (he drove the car negligently) makes it more than a “mere legal conclusion,” even though the allegation of negligence, viewed in isolation, might be called conclusory.