October 29, 2010
Decision of Interest: Twombly/Iqbal in the Eleventh Circuit
Last week the U.S. Court of Appeals for the 11th Circuit issued a significant opinion on federal pleading standards in the wake of the Supreme Court’s decisions in Twombly and Iqbal. The case is Speaker v. U.S. Dept of Health & Human Servs. Centers for Disease Control (“CDC”), No. 09-16154, 2010 WL 4136634 (11th Cir. Oct. 22, 2010). If that caption rings a bell, it’s because the plaintiff is Andrew Speaker, whose quarantine by the CDC in 2007 garnered considerable media attention. Relying on Twombly and Iqbal, the district court dismissed Speaker’s complaint. The 11th Circuit reversed, concluding that Speaker had adequately alleged a violation of the Privacy Act (5 U.S.C. § 552a).
One element of Speaker’s claim was that the CDC, by disclosing Speaker’s medical information, failed to fulfill its record keeping obligation under the Privacy Act. As to this element, the 11th Circuit reasoned (emphasis in original):
Plaintiff Speaker has pleaded enough factual content to “nudge [his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S. Ct. at 1974. Importantly, Speaker’s allegations are not barren recitals of the statutory elements, shorn of factual specificity. See id. at 555, 127 S. Ct. at 1964-65 (stating that “a plaintiff’s obligation to provide grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do” (quotation marks and brackets omitted)).
Rather, Speaker alleges what the CDC disclosed; namely, “personally identifiable information,” including information relating to his “medical history and his testing and treatment for tuberculosis.” Am. Compl. 13 ¶ 81. Moreover, he alleges when the CDC disclosed this information: namely, “during the time frame of said public press conferences.” Am. Compl. ¶ 83. Speaker’s Amended Complaint narrows the time frame of the CDC’s initial disclosures to a short period in late May 2007. Speaker also expressly identifies one news organization to whom disclosure was made; namely, the Associated Press, which he claims received the leaked information between May 29 and May 31. Id.14 Importantly, Speaker has also alleged with factual specificity how the CDC came into possession of this information. Even the CDC does not dispute that it had the information that Speaker alleges was impermissibly disclosed. And there is no doubt that some entity, or its employees, disclosed Speaker’s identity, since not even the CDC contends that Speaker himself revealed this information before the AP’s May 31 article.
Another element of Speaker’s claim was that the CDC intentionally disclosed his information. The 11th Circuit found that Speaker’s allegations on this element were sufficient because:
Speaker expressly alleges that the CDC’s “unauthorized disclosure” was “intentional” Am. Compl. ¶ 1; see also id. ¶ 82 (stating that improper disclosures were “a result of the deliberate actions of the CDC and its employers or agents”); id. ¶ 83 (alleging that CDC’s disclosures were “part of a media campaign directed toward Mr. Speaker”); id. ¶ 111 (stating that “[a]t all times relevant herein, the CDC acted wilfully and intentionally in connection with the aforementioned disclosures”); id. ¶ 112 (referring to CDC’s unauthorized disclosure as “intentional”).
(Hat Tip: Marjorie Silver)
October 28, 2010
Halberstam and Reimann on Federalism (comparative)
Daniel Halberstam and Mathias Reimann (University of Michigan) have posted Federalism and Legal Unification: A Comparative Empirical Investigation of 20 Legal Systems to SSRN.
How and to what degree do federations produce uniform law within their system? Our comparative empirical study addresses this question comprehensively for the first time by examining legal unification in twenty federal systems around the world. We present the means and methods of legal unification, the degree of legal unification of each system (and of particular areas of the law within each system), and a first attempt to explain the driving forces of legal unity and diversity in federations more generally.
October 26, 2010
Sullivan on Iqbal and Employment Discrimination Claims
Prof. Charles Sullivan (Seton Hall) has posted on SSRN a draft of his article, Plausibly Pleading Employment Discrimination, which is forthcoming in the William & Mary Law Review. Here’s the abstract:
The Supreme Court’s unanimous 2002 decision in Swierkiewicz v. Sorema N.A., which took a very permissive approach to pleading discrimination claims, may or may not remain good law after Ashcroft v. Iqbal. As is well known, Iqbal took a restrictive approach to pleading generally under the Federal Rules, and its application to employment discrimination cases could pose serious problems for plaintiffs attempting to get into federal court. Further, there is certainly a tension between Swierkiewicz and Iqbal. This is in part because the former is a strong reaffirmation of notice pleading as it has traditionally been understood while the latter makes clear that “plausible pleading” is something very different. But it also because Iqbal was, after all, a discrimination case (albeit brought under the Constitution rather than a federal statute), and its finding that the discrimination alleged there was not plausibly pled could easily be applied to Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.
Numerous scholars have analyzed Iqbal generally and several have addressed the application of plausible pleading to claims under the antidiscrimination laws. A respectable view is that Swierkiewicz remains good law although the commentators recognize legitimate questions about its continued vitality. This Article, while agreeing that there are readings of both Swierkiewicz and Iqbal that would permit this result, nevertheless explores the contrary possibility: supposing Iqbal sub silentio overrules Swierkiewicz and applies plausible pleading to discrimination claims, what must a plaintiff plead to avoid dismissal for failure to state a claim?
The most obvious response is that plaintiff should plead a prima facie case of discrimination under the traditional McDonnell Douglas Corp. v. Green standard. Although Swierkiewicz held that this was not necessary (in part because there are other ways of proving discrimination), it did not suggest that such pleading would not be sufficient. There are, however, complications with this approach that should be explored. Further, there are at least three alternatives for attorneys who cannot, consistent with Rule 11, allege such a prima facie case. First, the plaintiff might survive a 12(b)(6) motion by pleading “direct evidence” of discrimination. While the term has a checkered history in discrimination jurisprudence, the pleading context suggests a new look at an old concept. Second, the article addresses the possibility of pleading the existence of a “comparator” whose more favorable treatment than plaintiff may make the claim of discrimination plausible.
Third, and perhaps most radically, the article argues that plaintiffs should be able to take the Supreme Court at its word in Iqbal that, in deciding a motion to dismiss for failure to state a claim, a district court must take as true all facts (as opposed to legal conclusions) alleged in the complaint. It proposes that plaintiffs plead the existence of social science research showing the pervasiveness of discrimination. Taken as true, this body of literature may well nudge a particular claim across the border drawn by the Supreme Court between a “possible” claim and a “plausible” one.
October 25, 2010
3d Cir. on Preemption of Cellphone Liability Lawsuits
The Third Circuit has held in Farina v. Nokia that consumers may not sue cellphone companies over health hazards posed by cellphone radio wave emissions because this conflicts with the FCC's power to regulate the industry.