A retreat from decision by rule in Ashcroft v. Iqbal.

• Author: Mohan, Rajiv

Federal Rule of Civil Procedure 8 requires only that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." (1) In 1957, the Supreme Court in Conley v. Gibson held that a complaint survives a motion to dismiss under this Rule "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." (2) The goal of the pleading requirements, the Court explained, is to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." (3) This type of liberal notice pleading persisted until at least 2007, when the Court abandoned Conley's "no set of facts" language in Bell Atlantic Corp. v. Twombly. (4) Twombly, which dealt with an alleged antitrust conspiracy, required that a complaint have "enough facts to state a claim to relief that is plausible on its face." (5) In so holding, the Court maintained that an unspecified, conclusory allegation of conspiracy did not "supply facts adequate" to meet this burden. (6) The plausibility standard "d[id] not impose a probability requirement," but seemingly required something more than a "mere possibility." (7) Following Twombly, there remained significant uncertainty about the reach of the plausibility standard and how much it diverged from prior doctrine. (8)

Last Term, the Court addressed this uncertainty in Ashcroft v. Iqbal, (9) laying out a two-step test for applying the plausibility standard to all civil cases. First, a reviewing court must identify any legal conclusions in a pleading, which are not entitled to a presumption of truth. Second, the court must look at the factual allegations, take them as true, and determine whether the complaint states a plausible claim of relief. (10) Plaintiffs' lawyers, consumer groups, and civil rights advocates have criticized Iqbal for unfairly imposing a more burdensome pleading standard on plaintiffs, thereby denying them access to the courts. (11) But there are more basic objections to Iqbal based on formalist principles not typically associated with parties like the plaintiffs' bar. (12) Formalism embodies the notion of decision by clear rule and has been touted for promoting uniformity, neutrality, and predictability. (13) By moving pleading standards further away from decision by rule, the Supreme Court in Iqbal improperly undermined the virtues of formalism.

In November 2001, agents of the Federal Bureau of Investigation (FBI) and the Immigration and Naturalization Services arrested Javaid Iqbal "on charges of fraud in relation to identification documents and conspiracy to defraud the United States." (14) As part of a post-September 11 investigative sweep, authorities designated Iqbal a "person 'of high interest'" and placed him in a highly restrictive maximum security prison unit. (15) After serving his prison term, Iqbal was removed to Pakistan, where he filed a Bivens action in the United States District Court for the Eastern District of New York. (16) The complaint--filed under the pre-Twombly regime--centered on Iqbal's treatment during his confinement, and alleged that Attorney General John Ashcroft and FBI Director Robert Mueller had "willfully and maliciously" subjected him to harsh conditions "on account of [his] religion, race, and/or national origin and for no legitimate penological interest." (17) Specifically, Iqbal alleged that Ashcroft was the "principal architect" of the discriminatory policy and that Mueller was"'instrumental' in adopting and executing it." (18)

Ashcroft and Mueller filed a motion to dismiss for failure to state a claim, but the district court, relying on Conley's "no set of facts" language, denied the motion. (19) The defendants then appealed to the Second Circuit, and while their appeal was pending, the Supreme Court handed down its opinion in Twombly. When ruling on Ashcroft and Mueller's appeal, the Second Circuit interpreted Twombly as adopting "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." (20) The court determined that Iqbal's claim was not one of these contexts and affirmed the district court's denial of the motion to dismiss.

The Supreme Court reversed, setting out a defined framework to apply the plausibility standard in all cases. Writing for a majority of five, Justice Kennedy first discussed the underlying substantive law necessary to state a claim of unconstitutional discrimination against a government official under the First and Fifth Amendments. (21) The Court required actual discriminatory purpose; neither knowledge of a policy's effects nor the doctrine of respondeat superior could provide a basis for relief. (22) The majority then addressed the sufficiency of Iqbal's complaint under Twombly's interpretation of Rule 8.

The Court made clear that the Twombly plausibility standard was not flexible, explicitly recognizing that the standard applied in all civil actions. (23) The Court then put the Twombly standard in terms of a defined framework. First, a reviewing court should identify all the legal conclusions in a pleading, which are not entitled to a presumption of truth. (24) Next, if the complaint contains "more than [mere] conclusions," the court should examine all factual allegations, taken as true, and "determine whether they plausibly give rise to an entitlement to relief." (25) In enunciating the second step, the majority constructed a new layer of analysis over the Twombly framework, stating that the plausibility determination was "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." (26)

The majority determined that under this framework, Iqbal's complaint failed to satisfy Rule 8. First, the Court deemed conclusory Iqbal's allegation that Ashcroft and Mueller "knew of, condoned, and willfully and maliciously agreed to subject [him] to harsh conditions ... solely on account of [his] religion, race, and/or national origin." (27) Similarly, it found conclusory Iqbal's claims that Ashcroft was the "principal architect" of the policy and that Mueller was "'instrumental' in adopting and executing it." (28) These allegations, therefore, were not entitled to a...