Pleading an Employment Discrimination Case After Ashcroft v. Iqbal

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:

We next consider the factual allegations in respondent’s complaint to determine if they plausibly suggest an entitlement to relief. The complaint alleges that “the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men … as part of its investigation of the events of September 11.” Complaint ¶47, App. to Pet. for Cert. 164a. It further claims that “[t]he policy of holding post-September-11th 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.” Id., ¶69, at 168a. Taken as true, these allegations are consistent with petitioners’ purposefully designating detainees “of high interest” because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.

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):

On the pleadings, the Court employs its "common sense" and "judicial experience" to conclude, in the face of unequivocal and specific allegations to the contrary, that a policy with an admittedly disparate impact based on race, national origin and religion was "likely lawful and justified by [a] nondiscriminatory intent" and that any more invidious explanation is too implausible to warrant even targeted investigation through discovery -- or even the requirement that the defendants admit or deny the allegations of wrongdoing in an answer.

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:

If this "common sense" approach is to be generally applicable law, can any claim survive in which the plaintiff asserts a motivation for defendant's actions that appear contrary to the judge's experience?  I worry not.  Take any garden variety Title VII claim that relies upon claiming racial animus, for example.

Jonathan Siegel (GWU) discusses the obvious inconsistency between Iqbal and Swierkiewicz:

Iqbal also seems notably inconsistent with Swierkiewicz v. Sorema (2002).  That case approved a complaint that alleged that the plaintiff was fired because of his age and national origin.  The Court specifically rejected the argument that it should not allow "lawsuits based on conclusory allegations of discrimination."  Apparently an allegation that the plaintiff was fired because of national origin is OK, but an allegation that the plaintiff was subjected to unconstitutional conditions because of national origin is a "bare assertion" that a court need not accept as true on a motion to dismiss.

Beth Thornburg (SMU) writes:

I think that in both Twombly and Iqbal the way the Court plays fast and loose with the ephemeral law/fact line is fascinating.  And although I hope I’m wrong, it seems that the majority has gone back to the old code pleading “conclusions don’t count” kind of analysis.

Joe Seiner (S. Carolina), who has an article proposing a unified pleading standard in employment discrimination cases, comments:

My overall take on the Iqbal decision is that it will create a lot of confusion over what must be alleged by all civil rights plaintiffs in their complaints.  Iqbal will also likely lead to increased litigation on this issue, and potentially more district courts throwing out employment claims prior to summary judgment.

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.

rb