The Supreme Court of the United States of America held that allegations of violations of constitutional rights have to comply with a plausibility requirement, which had been deviced in an earlier case, by the Court. The case is captioned Ashcroft v. Iqbal 129 S.Ct. 1937 (2009). After the ruling, the whole legal profession, at least those of us who work these cases, went into a frenzy in order to understand what the Supreme Court meant. Pleading standards are ordinarily cause for concern for attorneys who try cases - never liked the "trial attorney" designation because it sounds like a money-back guaranteed attorney - because these standards govern the amount of detail an attorney will have to pry from their ordinarily reticent clients before filing suit. Too many people stated that Iqbal raised the bar for pleadings for these cases. A dispassionate reading of the case reveals that it should have no practical effect on pleadings practice for these cases.
Iqbal is a Pakistani Muslim who was detained after the 9/11 attacks and taken under custody as an individual of high interest to the investigation that ensued after the nefarious incident and charged with fraud and conspiracy to defraud the Goverment. He served an undisclosed prison term and was removed (deported) back to Pakistan. Mr. Iqbal then filed suit against the federal officers in charge of his imprisonment. The suit named almost every officer who ever had contact with him and all the way to the top of the Department of Justice, where the Bureau of Prisons is ascribed. These officers where the ones who appealed the denial of their motion to dismiss all the way to the Supreme Court. These defendants were the Secretary of Justice and the Director of the Federal Bureau of Investigations.
The allegations in the complaint stated that it was under the above individuals created and implemented a religious and racially discriminatory criteria for discerning which individuals would be considered of high interest for purposes of detention and interrogation following 9/11. That criteria led to the overextended detention of plaintiff.
The Supreme Court had held that to survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face. This standard was clear from the start, it meant that a plaintiff cannot comply with the requirements of Rule 8 of the Fed. R. of Civ. Proc., which governs pleading standards, by merely reciting the requirements of the cause of actions and juxtaposing these with the named defendant and the requirement that motion to dismiss must accept all pleaded facts as true. The plausibility requirement was considered to collide with an earlier statement by the Court, when it construed Rule 8, which held that a complaint should not be dismissed for failure to state a claim unless it appeared beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The standard seemed to suggest, as the Court explains, that any statement revealing the theory of the claim will suffice unless its impossibility is apparent from the face of the pleadings. The Court then demonstrated that such a standard has never been followed and that judges, in practice, have actually required that pleadings contain factual allegations that may allow them to directly or indirectly infer that the causes of action have a factual basis.
The Court further explained that what the Supreme Court Justice who wrote it meant was, that once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations. An entirely different thing?, ... well, yes!!!!
Back to Iqbal, the case incorporates this understanding of the pleading requirement applicable under Rule 8. It clarified that the plaintiff must do more than simply establish the possibility of misconduct by the defendant. A plaintiff stating a claim under for relief must state facts which demonstrate, o show, a plausible claim for relief.
What is plausible then? Which are these magical statements that "nudge a claim" [...] "accross the line from conceivable to plausible". These statements are factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. It is more than a sheer possibility of misconduct. It is, it is, it is, it is,................................................
IT IS THE SAME THING THAT WE HAVE BEEN DOING ALL ALONG!!!!!!!!!!!!!!!!
So, why all the commotion with Iqbal? Well, because the Court cited from Twombly in order to construct the following paragraph:
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’ ” Id., at 557 """
And then the fireworks began!
The case-law cited in support of these statements in Twombly is far more revealing than the above-cited paragraph. Pages 556 and 557 explain what factual content was necessary for the plaintiff to establish that an agreement in violation of the antitrust prohibitions of section 1 of the Sherman Act existed. Merely pleading that an agreement existed was insufficient. Pleading that an agreement existed was merely border-line, it denoted that misconduct was possible. Hence, an additional circumstance needed to be alleged in order to establish that the agreement was the consequence of a meeting of the minds bent on producing a result prohibited by antitrust laws.
What the above means is that there are words that are both legal and factual significant. For example the word agreement implies both a factual and a legal meaning, as does the word conspiracy. So do the words, fraudulently, intentionally, and negligently. All these words may convey both meanings. So merely juxtaposing these words with the defendants proximity to the situation or circumstance which the plaintiff alleges as injurious is not enough. The plaintiff must plead other circumstances which give context to these words and which allow the trier of fact to say: "Well, you know what, this smells fishy", independently from the fact that the word "conspiracy" was used.
Otherwise, these encompassing words would plead that an agreement existed and, for purposes of a motion to dismiss, the plaintiff would be nothing short of infallible.
It is hard for me to believe that this was ever a problem for courts. Pleadings with such overarching words have been dismissed plentifully, at least in the District of Puerto Rico, before either Twombly or Iqbal.
In fact, the Court in Iqbal specified that its plausibility analysis was based on the fact that the plaintiff did not allege facts which would have allowed the judge reviewing the complaint to discern between a policy created, implemented and directed towards the extended detention of all Pakistani individuals in the U.S. (which would be actionable under Bivens) - e.g. prolong the detention of all Pakistani nationals in US soil -; from a claim that the defendants created and implemented that policy in spite of its effect on individuals who were Pakistani - e.g. prolong the detention of all individuals who entered the country illegally in the past five years and preliminary determine their ties to terrorist activities -. (Not my design, read the case!). So these allegations were not entitled the presumption of truth.
However, what if the plaintiff had given context to these bald assertions? The Court explains that if the plaintiff had given more context to these allegations then he would have nudged his claims from the realm of the possible to the realm of the plausible. Then, the paragraph cited above, makes sense. Not much has changed, it has been merely explained. The bald assertions must be explained, that is all. However, these cannot be extricated from a complaint in order to determine whether it holds its ground against a 12(b)(6) attack.
Enter, Ocasio Hernandez v. Fortuño Burset. There the First Circuit clarifies the current status of the notice pleading standard in the federal courts. Not surprisingly, it recited the familiar standard, with the word plausible inserted. It then analyzes the District Court's decision and concludes that the opinion below overestimated the need for factual content in the complaint. The plaintiff did not have to explain each and every detail of how the defendants violated their constitutional rights. Instead, all that was needed was enough factual content to connect each defendant which required element of the cause of action. The question of which evidence pointed to each defendant, and specific factual details verifying each factual assertion, need not be given at that time.
So, if the standard has not changed that dramatically, why all the hoopla? Well, when a lot of noise is made with regards to a particular topic, there are people who will benefit from charging a hefty fee, to explain it. That is not the only certainty from chaos. Plaintiffs, particularly the less accommodated ones, suffer from this void that is created as judges and attorneys grapple with these manufactured issues.
At least in §1983 practice, recitation of the legal requirements for causes of action, bald speculative assertions, and legal concepts carried and carry no weight whatsoever before or after Twombly - Iqbal. Which leads to the conclusion that not much has changed, there has been no revolutionary change in pleading practice, just a stern and definitive break from previously enunciated concepts, statements and arguments which almost no judge followed.
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