Tuesday, May 19, 2009
The Civil Procedure listserv has been aflutter ever since the Supreme Court yesterday released Ashcroft v. Iqbal. In that case, the Court upheld the 12(b) dismissal of a Bivens action against high-level executive officials by a 9/11 detainee. The Court held that the complaint was insufficient under Rule 8(a)(2) and Twombly. The Court split 5-4, with Kennedy writing for the majority and Souter and Breyer dissenting.
Here's the key language in the majority opinion:
The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim-Osama bin Laden-and composed in large part of his Arab Muslim disciples. 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 would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that “obvious alternative explanation” for the arrests, Twombly, supra, at 567, and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion.
The Court seems to have reversed the "liberal pleading requirements" of the Federal Rules of Civil Procedure, and instead has invited federal trial courts to dismiss discrimination claims when the pleadings are conclusory and "common sense" suggests that no discrimination occurred. This is bad policy, and completely at odds with the Swierkiewicz decision released only a few years ago.
Here's a sample of the running commentary. From Tobias Wolff (Penn):
I fear that the shock waves that Twombly sent through the lower courts will be as nothing compared to the impact of Iqbal. The Court has just transformed the litigation process and given lower courts a license to dismiss factually specific complaints when their "common sense" tells them that the allegations have "obvious alternative explanations."
Lumen Mulligan (MSU) suggests that the new decision bodes very badly for Title VII plaintiffs:
Jonathan Siegel (GWU) discusses the obvious inconsistency between Iqbal and Swierkiewicz:
Beth Thornburg (SMU) writes:
Joe Seiner (S. Carolina), who has an article proposing a unified pleading standard in employment discrimination cases, comments:
So -- what's left of Swierkiewicz? Is it effectively overrruled by Twombley and Iqbal? Or does the pleading standard under the Federal Rules vary by cause of action -- a liberal pleading rule for Title VII cases (Swierkiewicz) but a heightened standard for antitrust (Twombley) and Bivens (Iqbal) claims? It seems to me that politics here may have taken a front seat to a consistent interpretation of the Federal Rules. If so, this bodes very poorly for the Court's credibility.