Umair Khan, Staff Writer & Robert Magee, Lead Writer
On December 10, 2008, the Supreme Court heard oral argument in the case of Ashcroft v. Iqbal.1 The case involves a Pakistani Man, Javaid Iqbal. In the months after September 11th, the Justice Department set out to determine the legal status of every Muslim born man in the New York Metropolitan area.2 Iqbal, a cable repairman, was working in New Jersey when he was brought in for investigation by the Department of Justice on November 2, 2001. When it was discovered that Iqbal’s immigration status was not current, Iqbal was confined to the Metropolitan Detention Center (MDC) in Brooklyn, New York.3 When he first entered the MDC, he was housed among the general population, but his immigration status, coupled with his Pakistani origin and Islamic faith earned him a “high interest” designation.4 He was thusly confined to a special unit within the MDC, the ADMAX-SHU (“Administrative Maximum Secure Housing Unit”).5 Without ever being afforded a hearing, Iqbal was detained at the MDC for over a year and, he alleges, subjected to horrific verbal, mental and physical abuse, including being left outside during winter without adequate clothing, incessant and unnecessary strip and cavity searches, and starvation.6
After being allowed to plea to immigration violations, Mr. Iqbal was deported. Having returned home, though, he has sought legal redress for violations of his Due Process and First, Fourth, Fifth, Sixth, and Eighth Amendment rights under both Bivens7and 42 U.S.C. § 1983 claims, along with numerous statutory violations.8 Significantly, Mr. Iqbal alleges that Attorney General John Ashcroft and other officials at the Department of Justice and FBI approved the “hold and clear” policy which led to his being unconstitutionally detained without a hearing.9 Proving such an allegation is determinative of whether a plaintiff has established a valid § 1983 claim.10
Unfortunately, in writing his initial complaint, Mr. Iqbal had no smoking gun to prove this. He had no memo or tape in which Attorney General Ashcroft explicitly authorized officials at the MDC to violate Mr. Iqbal’s rights and it was this lack of a specific allegation that Ashcroft and other defendants moved for dismissal of Iqbal’s claim on the grounds that he, inter alia, hadn’t sufficiently plead a cause of action under FRCP 12(b)(6).11 The Eastern District of New York did not agree, the defendant’s appealed, lost in the Second Circuit12, and went on to win a writ of certiorari to the Supreme Court.
It was thus that Mr. Iqbal’s claim was cast in a new light. It is no longer a case about civil rights versus national security, but of civil procedure. Specifically, his claim was anointed to settle the confusion surround FRCP 8(a), establishing federal pleading standards, since the Supreme Court’s decision in Bell Atlantic v. Twombly.13
FRCP 8(a) reads as follows;
(a) Claims for Relief.
A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.14
The history of Rule 8 has borne out Congress’s intent that it and the Federal Rules of Civil Procedure be read liberally. Prior to the establishment of the Federal Rules of Civil Procedure two primary forms of pleading embodied in the common law and was known as the Field Code.15 Both of these systems were far more procedurally rigid and required greater particularity in the complaint. Common law pleadings, also known as issue pleadings (because their primary purpose was the framing of an issue)16 developed in England in the thirteenth century during the reign of King Edward III.17 This arcane system required a plaintiff to first obtain the appropriate writ that the plaintiff’s was a “right of action recognized by the King.”18 Upon purchasing the appropriate writ, the plaintiff then had to specify the claim to identify the issues in the cause of action.19 For all the obvious shortcomings of the common law standard, the movement to change it did not establish a foothold until the middle/end of the nineteenth century, as a close cousin to the movement to consolidate courts of law and equity.20 In addition, plagued by these challenges and legal fictions, Hepburn explicates that the “incongruit[ies] between . . . procedure and . . . substantive law” paved the groundwork towards the reformation of the common law pleading.21 Specifically, that the common law pleading system failed to adapt to the tremendous growth in substantive rights because of its inherent subordination of form over substance.22
Although there were various attempts to change pleadings standards, New York’s adoption of the code pleading culminated in the first merger of not only law and equity, but also a much more simplified form pleadings in the United States.23 New York’s shift signified a historic change to a five and half century old pleading system.24 States that used code pleadings shared common characteristics, including: (1) basis of common law procedure, (2) “a ‘single form of action,'” and (3) a limited pleading premised upon facts.25 Though less cumbersome and rigid than its predecessor, code pleadings still required that a plaintiff allege in “‘[a] plain and concise statement of the facts constituting each cause of action [including defense or counterclaim] without unnecessary repetition.'”26 Thus, they are referred to as fact pleadings because of the primacy of stating the appropriate facts.27 The realities of the pleadings under the code system frustrated jurists across the nation. Judge Charles Pratt in his address before the Ohio Bar Association in 1895, complained that although the Ohio Code “‘requires the pleading to be in ordinary and concise language . . . no one would suspect from examination of the files of any of our courts that such provision existed.'”28 Even after forty years of code pleadings, “[we] ‘have been constantly refining upon encumbering them with useless phrases and innumerable repetitions, until our pleadings, instead of being simple of statements of fact in ordinary and concise language, have become intricate and complex of special pleadings.'”29 Other critics argue the contentious nature of code pleadings because facts are not always “definite and certain.”30
As early as 1921, after visiting the British Bar for three weeks, Chief Justice Taft urged reforms by consolidating the Federal courts and consequently the pleading system.31 In a speech later that year, he also suggested the mechanisms by which to implement the reform.32 The Chief Justice’s recommendations would not be implemented for thirteen years.33
In 1935, following the passage of the Rules Enabling Act of 1934, the Supreme Court appointed the Advisory Committee on the Civil Rules.34 Dean Charles E. Clark served as the Reporter of this committee.35 In order to understand the development of the FRCP, it is important to recognize that the “underlying philosophy . . . procedural choices embodied in the Federal Rules, were almost universally drawn from equity rather than common law.” 36 Clark confirms this in his explanation of the history of pleadings and the adoption of principles used by chancellors to modern pleadings.37 Due to the hyper-technical nature of common-law pleadings, the clergy “who occupied the office of Chancellor . . . [developed] simpler methods of pleadings.”38 Equity provides complete justice by resolving multiple issues, into one.39
The direct consequence of the earlier pleading standards limited the ability of plaintiffs to bring their cases to the federal courts because of the priority of form over substance. The Advisory Committee intended to reverse this concept, whereby procedure would merely serve, in the words of Clark, as the “handmaid rather than mistress of justice,”40 an instrument of equity. Contrary to the common-law and code-the aforementioned fact and issue specific pleading standard-the Advisory Committee sought to infuse a “‘liberal ethos,’ where the preferred disposition is on the merits, by jury trial, after full disclosure through discovery.”41 This is encapsulated by Clark, “[p]leading is not an end in itself, but only a means to an end-the working out of justice through the rules of substantive law.”42 Clark’s statement is reflective of the paradigm in thought-from the aforementioned subordinate function of law to form-to the new ethos entrenched in equity.
The drafters of the FRCP explicitly rejected the code standard that required that the complaint set forth sufficient facts to state a cause of action43, and the modern pleading system emanates from Rule 8 of the FRCP, specifically 8(a)(2).44
Early on, the Supreme Court ruled that Rule 8 only required allegations specific enough to put defendant on notice of the nature of the plaintiff’s claim.45 As such, Rule 8 was read to establish a notice pleading standard until the Supreme Court (sort of) ruled otherwise in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007).
Twombly concerned a Sherman Act Section One/restraint of trade claim.46 The plaintiffs alleged in their complaint that telephone companies were acting in concert to restrict competition amongst themselves while excluding plaintiffs from market.47 In their complaint, however, the plaintiffs didn’t allege any facts indicating an explicit agreement between these companies to do this. Instead, plaintiffs cited facts that were merely indicative of such an agreement.48 These allegations of parallel conduct, the Court ruled, “stops short of the line between possibility and plausibility of ‘entitle[ment] to relief.'”49 This was in apparent contrast to the penultimate language on pleading standards contain in Conley v. Gibson, 355 U.S. 41 (1957), that complaints ought not to be dismissed unless it is “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”50 The Twombly Court went on to denounce the pleading standard established in Conley51, but it was not clear on whether Conley was being overruled outright, or only in Sherman Antitrust actions and in any event the Court failed to replace Conley‘s “no set of facts” standard with a clear or workable one of its own.
The Twombly Court intermittently alludes to a “plausibility” standard requiring a specificity of pleading above that required under Conley52 yet categorically denies imposition of a universal FRCP 9-type heightened pleading standard.53 Nowhere does the Court say where between these two poles its new standard lies except to require that plaintiffs “nudge their claims across the line from conceivable to plausible.”54 This is further confused by the reality that only Congress may amend the Federal Rules of Civil Procedure.55
The result of this ambiguity was that within a little more than a year after Twombly was handed down, the thirteen circuits of the United States Court of Appeals had established no fewer than six distinct interpretations of Twombly‘s post-Conley pleading standard causing not so much a circuit split as a shatter. Here is how the courts broke down:
- Universal Plausibility Standard – (Third, Fourth, Fifth, Eleventh)- Twombly requires plaintiffs in all cases to plead facts that demonstrate a reasonable expectation that evidence of the alleged element will be revealed during discovery. The language of these cases suggests, with the exception of the Eleventh circuit, that certain actions (employment discrimination actions in particular) might be exempted.56
- Flexible, Limited Plausibility Standard – (Second) – In certain cases, depending on their complexity, Twomblyrequires that certain facts may require delineation in a complaint if it is to survive a 12(b)(6) motion. Functionally this and the Universal Plausibility standard would be identical (the needed specificity of facts to establish a “plausible” claim is necessarily bound up with the complexity of the claim), but the Second Circuits’ case-by-case application warrants delineation.57
- Limited Plausibility Standard– (Sixth, Seventh, Ninth, D.C.) – Twombly only requires a plausibility standard in certain kinds of cases, in, for example, discovery intensive Anti-Trust-type actions58, Section I Anti-Trust Actions59, or In Terrorem litigation (litigation in which discovery is itself so onerous as to constitute its own punishment).60
- Universal Court-centric Notice – (First, Eighth) – Twombly requires that factual allegations in complaint notify thecourt as to what the plaintiff’s claim is arising out of.61
- Universal Defendant-centric Notice – (Federal) – Twombly requires that factual allegations in the complaint notify thedefendant as to what the plaintiff’s claim is arising out of. 62 The differences between the defendant and court-centric notice standards, like the flexible, limited and universal plausibility standards, aren’t functionally important, they only manifest themselves in application, not necessarily outcome.
- Universal Defendant-centric Notice/Plausibility Standard – (Tenth) – Twombly requires all complaints plead facts which demonstrate a reasonable expectation that evidence of the alleged element will be revealed on discovery as gauged by the extent to which said facts put the defendant on notice of what the plaintiffs claim arises from.63 This is an amalgamation of Universal Defendant-centric Notice and Universal Plausibility, but it’s not an even one: the Tenth circuit is leaning towards Universal Plausibility.
Aside from Twombly‘s being a parable for the need for specificity in judicial pronouncement and the need for careful thought and planning before tampering with precedent, it serves as a reminder of the extent to which pleading standards govern access to judicial recourse, especially for plaintiffs like Javaid Iqbal.
If Twombly is indeed deemed to have required plaintiffs to plead specific facts in making claims, indigent and poor plaintiffs, like Mr. Iqbal, who are unable to garner the investigatory resources necessary to obtain such facts before discovery, will feel the burden most heavily. Indeed, it would appear that heightening the notice pleading standard would require plaintiffs to obtain before commencement the sort of facts that discovery was designed to uncover. Though the argument that discovery itself can be an undue burden for a defendant is a tenable one, its tenability is weakened by the limited discovery option afforded courts under FRCP 26.
It will be interesting to see where the Roberts Court will come down on this issue, though it doesn’t seem likely that this particular reality will bear heavily on its reasoning either way. That being said, it won’t be a disaster for indigent civil rights plaintiffs either. As is often the case, they may not have the Court, but they’ll always have Congress.
Meredith Perry, Kristin Wernig, & Eric Schillinger, editors.
1 Transcript of Oral Argument, Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (No. 07-1015), 2008 WL 5168391.
2 Office of the Inspector Gen., U.S. Dep’t of Justice, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 1-2 (2003), http://www.usdoj.gov/oig/special/0306/full.pdf [hereinafter OIG Report].
3 Brief for the Sikh Coalition, et al. as Amici Curiae Supporting Respondent at 5, Ashcroft v. Iqbal, 128 S.Ct. 2931 (No. 07-1015), 2008 WL 4805226.
6 Elmaghraby v. Ashcroft, No. 04 CV 01809 JG SMG, 2005 WL 2375202, at *3-*9 (E.D.N.Y. Sept. 27 2005). See also OIG Report, at 142-48.
7 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
8 Elmaghraby, 2005 WL 2375202, at *1. Javaid Iqbal initially had a co-plaintiff who has since settled out of the case.
9 Id. at *3.
10 Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003).
11 Elmaghraby, 2005 WL 2375202, at *11-12.
12 Iqbal v. Hasty, 490 F.3d 143, 177-78 (2d Cir. 2007).
13 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
14 Fed. R. Civ. P. 8(a).
15 Adopted by New York in 1848, by the 1930s over half the states in the Union adopted code pleadings. See Roy L. Brooks, Critical Race Theory: A Proposed Structure and Application to Federal Pleading, 11 Harv. Blackletter L. J. 85, 100 (1994).
16 Charles E. Clark, Handbook of the Law of Code Pleading 56 (1928).
17 Brooks, supra note 15, at 99. Professor Brooks further illustrates that writs were limited “in number and divided into branches, such as the actions of replevin and trespass vi et armis.” Id. He goes on to explain that identifying the appropriate writ could be challenging, “[f]or example, if the plaintiff sustained an ‘indirect injury,’ the appropriate write was not the ordinary write of trespass, which offered redress of ‘indirect injuries’ but the writ of trespass on the case.” Id.
20 The United States merged the two systems in 1848 followed by England in 1873. The state of New York adopted the Code standard in 1848. See id. at 100-02.
21 Charles M. Hepburn, The Historical Development of Code Pleading in England and America 31 (The Lawbook Exchange, Ltd. 2002) (1897).
23 Charles Alan Wright & Mary Kay Kane, Law of Federal Courts 428 (6th ed. 2002).
25 Hepburn, supra note 21, at 12.
26 Thomas O. Main, Procedural Uniformity and the Exaggerated Role of Rules: A Survey of Intra-State Uniformity in Three States That Have not Adopted the Federal Rules of Civil Procedure, 46 Vill. L. Rev. 311, 375 (2001) (quoting Charles E. Clark, Handbook of the Law of Code Pleading 31 (2d ed. 1947) (“The Field Code required “a statement of the facts constituting the cause of action in ordinary and concise language, without repetition, and in such a manner as to enable a person to common understanding to know what is intended”)).
27 Clark, supra note 16, at 56.
28 Hepburn, supra note 21, at viii.
30 Clark, supra note 16, at 57.
31 William Howard Taft, Three Needed Steps of Progress, 8 A.B.A. J. 24, 35 (1922) (articulating his concerns in reforming procedure in the Federal courts).
32 Taft, 8 A.B.A. J. 604.
33 In 1934, Congress passed the Rules Enabling Act. See Carl Tobias, Public Law Litigation and the Federal Rules of Civil Procedure, 74 Cornell L. Rev. 270, 273 (1989); Rules Enabling Act, 28 U.S.C. § 2072 (2008).
34 See Main, supra note 26, at 320 n.39 (citing Rules Enabling Act, Act of June 19, 1934, ch. 651, §§ 1 & 2, 48 Stat. 1064 (codified as amended at 28 U.S.C. § 2072) (“To give the Supreme Court of the United States authority to make and publish rules in actions at law.”);
35 Tobias, supra note 33, at 273 n. 12 (citing Judith Resnik, Failing Faith: Adjudicatory Procedure in Decline, 53 U. Chi. L. Rev. 494, 499 n. 24 (1986) (Clark served as Dean of Yale Law School and would later become Chief Judge of the Second Circuit Court of Appeals)).
36 Tobias, supra note 33, at 275 (quoting Professor Subrin as saying “underlying philosophy of, and procedural choices embodied in, the Federal Rules were almost universally drawn from equity rather than common law” and that the “Federal Rules went beyond equity’s flexibility and permissiveness in pleading, joinder, and discovery.”).
37 The principles of equity laid the foundation of the current notice pleading.
38 Walter C. Clephane, Handbook of the Law of Equity Pleading and Practice, 7 (1926).
40 Charles E. Clark, Handbook of the Law of Code Pleading, 54 (2d. ed. 1947).
41 Id. (quoting Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433 (1986)).
42 Clark, supra note 40, at 54.
43 Main, supra note 3, at 327.
44 Wright & Kane, supra note 23, at 470.
45 Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
46 Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1961 (2007).
47 Id. at 1962.
48 Id. at 1966.
49 Id. (citing Fed. R. Civ. P. 8).
50 Conley, 355 U.S. at 45-46.
51 Twombly, 127 S. Ct. at 1969.
52 See, e.g., id. at 1968, 1970.
53 Id. at 1973, n.14.
54 Id. at 1974.
55 Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515 (2002). Additionally, the Twombly Court paid explicit homage to this reality itself. Twombly, 127 S. Ct. at 1973 n.14.
56 Umland v. Planco Fin. Serv., Inc., 542 F.3d 59, 64 (3d Cir. 2008); Phillips v. County of Allegheny, 515 F.3d 224 (3d Cir. 2008); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007); Davis v. Coca-Cola Bottling Co., 516 F.3d 955, 974 (11th Cir. 2008).
57 Boykin v. KeyCorp, 521 F.3d 202, 213-14 (2d Cir. 2008); Ross v. Bank of America, 524 F.3d 217, 225 (2d. Cir. 2008).
58 Midwest Media Prop., L.L.C. v. Symmes Twp., Ohio, 503 F.3d 456, 472 n.3 (6th Cir. 2007); Aktieselskabet v. Fame Jeans Inc., 525 F.3d 8, 15-16 (D.C. Cir. 2008).
59 Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1047 (9th Cir. 2008); Rick-Mik Enter., Inc. v. Equilon Enter. LLC, 532 F.3d 963, 970-71 (9th Cir. 2008).
60 Limestone Dev. Corp. v. Village of Lemont, 520 F.3d 797, 802-03 (7th Cir. 2008).
61 Thomas v. R.I., 542 F.3d 944, 948 (1st Cir. 2008); Gregory v. Dillard’s, Inc., 494 F.3d 694, 710 (8th Cir. 2007).
62 McZeal v. Sprint Nextel Corp., 501 F.3d 1354, 1356-57 (Fed. Cir. 2007).
63 Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008).