The new rule 12(b) (6): Twombly, Iqbal, and the paradox of pleading.

• Author: Kilaru, Rakesh N.
• Position: COMMENT

INTRODUCTION I. FROM TWOMBLY TO IQBAL: GETTING TO IMPLAUSIBILITY A. Twombly and the Two Types of Implausibility B. Iqbal: Plausibility as Process C. Common Results, Uncommon Author II. AFTER IQBAL: HEIGHTENED PLEADING AND THE TYRANNY OF LABELS III. CIVIL RIGHTS SUITS AND THE DISCOVERY PARADOX A. Crawford-El and Heightened Pleading B. Questions of Law as Questions of Fact? C. The Discovery Paradox CONCLUSION: THE MYTH OF THE BIG CASE INTRODUCTION

In the aftermath of the Supreme Court's 2007 opinion in Bell Atlantic v. Twombly, (1) judges and civil procedure scholars throughout the country divided on the opinion's significance. In just twenty-four pages, Twombly uprooted the Conley v. Gibson standard for evaluating motions to dismiss a lawsuit under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under Conley, a court could dismiss a complaint only if it "appear[ed] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief." (2) That standard had governed motions to dismiss for fifty years, and embodied the liberal notice-pleading regime envisioned by the framers of the Federal Rules of Civil Procedure. (3) But no more. Faced with a suit alleging that almost every major telephone company had engaged in anticompetitive conduct amounting to an antitrust conspiracy, the Court introduced a new system of "plausibility" pleading designed to curb discovery abuse and weed out frivolous lawsuits. (4) Now, plaintiffs had to include in their complaints "enough factual matter" to "nudge[] their claims across the line from conceivable to plausible...." (5)

In responding to the opinion, some judges agreed with Justice Stevens's view in dissent that Twombly "rewr[o]te the Nation's civil procedure textbooks and call[ed] into doubt the pleading rules of most of its States, (6) whereas others viewed Twombly fundamentally as an antitrust case and assumed that the case's effects would begin and end there. (7) At the same time, scholars fractured over the opinion's normative desirability; some viewed the opinion as a necessary bulwark against abusive practices by plaintiffs' attorneys, (8) whereas others saw it as going too far in assisting defendants. (9) Almost immediately, Twombly became one of the most frequently cited cases in pleadings, (10) even as judges split on how to apply its many strands. (11) In the midst of all this confusion, perhaps only one thing was settled: Twombly's reach was still unclear.

As judges and scholars waited for a new opinion clarifying Twombly, an unlikely case slipped to the front of the line: Ashcrofi v. Iqbal. (12) After 9/11, the government detained numerous Muslims and Arab-Americans, and one of those detainees, Javaid Iqbal, brought suit upon release. (13) Iqbal alleged that he had been detained on account of his race, religion, or national origin in violation of the First and Fifth Amendments, and that the Federal Bureau of Investigation (FBI) had subjected him to harsh conditions of confinement with "no legitimate penological interest." (14) The wrinkle in Iqbal's Bivens suit, (15) however, was that he was not just suing the individuals who had detained and allegedly abused him. Instead, Iqbal's suit also named former Attorney General John Ashcroft and former FBI director Robert Mueller as defendants, alleging that Ashcroft was the "principal architect" of the unconstitutional detention policy, and that Mueller was "instrumental" in its adoption and execution. (16)

Initially, it was unclear that Iqbal was even a contender to shed light on Twombly. The district court, hearing the case in 2005, had applied the Conley standard in denying in part the defendants' motions to dismiss. (17) The court of appeals faced the case post-Twombly and struggled with the import of that decision, ultimately concluding that Twombly imposed a "flexible 'plausibility standard'" obliging a pleader to "amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." (18) Nevertheless, many believed that the Court had agreed to hear the case for a completely different reason: to set forth a new form of qualified immunity for high-level officials. (19) Indeed, the topic of qualified immunity occupied much of oral argument, (20) so much so that one noted Court-watcher declared that Court was "edging toward embracing a new form of legal immunity." (21) Several months later, however, the Court took an alternate approach. Applying Twombly, the Court concluded that Iqbal's complaint simply failed to state a claim, and dismissed his suit outright. (22) The heir to Twombly had arrived, and with it, a similar result.

At first glance, Iqbal is different from Twombly in one obvious way: Justice Souter, the author of Twombly, penned the dissent in Iqbal, arguing that the majority misapplied Twombly's articulation of the Rule 8 standard. (23) But this Comment will argue that the opposite is true: Iqbal extends and codifies the rule and rationale of Twombly. In so doing, Iqbal, like Twombly, gives district court judges the most powerful case management tool of alia broader authority to simply dismiss a case outright. And by taking the view that dismissal may well be the better part of prudence, both cases mark out a new era of pleading practice far less charitable to plaintiffs and rewrite several Court precedents on pleading and practice in the civil rights context.

The rest of this Comment proceeds as follows. In Part I, I discuss the notion of "plausibility"--created by Twombly and refined by Iqbal--and explain how both cases apply the concept consistently. Part II clarifies the lay of the land post-Iqbal. While Twombly and Iqbal join the Court's prior precedents expressly disavowing heightened pleading standards, their practical effect is to create precisely such a standard. Part III discusses the effects of Iqbal in civil rights cases. I conclude that Iqbal undermines the result of Crawford-El v. Britton (24) and the reasoning of Pullman-Standard v. Swint, (25) two of the Court's opinions on motive-based civil rights torts. At the same time, Iqbal presents civil rights plaintiffs with a classic Catch-22: it denies them access to discovery because their complaints are not yet supported by enough facts. (26) The upshot is that Iqbal does not just raise the bar for complaints in general. It also erects a formidable--perhaps insurmountable-barrier to civil rights lawsuits in particular.

1. FROM TWOMBLY TO IQBAL: GETTING TO IMPLAUSIBILITY

   1. Twombly and the Two Types of Implausibility

      The most controversial aspect of Twombly was the Court's decision to "retire[]" (27) Conley v. Gibson's "no set of facts" language. (28) Under Conley, courts at the 12(b)(6) stage merely took a quick look at the complaint to determine if it "appear[ed] beyond doubt that the plaintiff c[ould] prove no set of facts in support of his claim which would entitle him to relief." (29) In the Court's eyes, this standard presented an open invitation to plaintiffs filing frivolous lawsuits by permitting "a wholly conclusory statement of claim" to survive 12(b)(6) "whenever the pleadings left open the possibility that a plaintiff might later establish some 'set of undisclosed facts' to support recovery." (30) Plaintiffs could thus withstand a motion to dismiss without "any showing of a 'reasonably founded hope'" of making a case. (31) As Justice Souter whimsically noted, "Mr. Micawber's optimism would be enough." (32)

      In the place of that overly permissive system, Justice Souter introduced a new, two-step method. Rather than merely taking a quick look at the complaint, district courts should first carefully examine the complaint to smoke out any "merely legal conclusions resting on the prior [factual] allegations." (33) Once that step is complete, district courts should weigh the remaining facts and determine if they are sufficient to "nudge [the] claims across the line from conceivable to plausible." (34) So long as plaintiffs cross that threshold, their suits may proceed. (35)

      At bottom, however, the big question in Twombly was what it means for allegations to be "plausible." Indeed, the term could refer to at least two different concepts: factual plausibility and legal plausibility. (36) Under a factual plausibility test, courts would simply ask whether the conduct alleged was likely to have occurred at all. For example, a court testing Twombly's complaint for factual plausibility would ask whether an antitrust conspiracy actually existed. By contrast, courts reviewing for legal plausibility would inquire whether the facts alleged in the complaint describe illegal conduct. Thus, a court reviewing Twombly's complaint would determine if the alleged conduct amounted to an illegal agreement.

      Ultimately, the Court settled on legal plausibility. As the Court made clear, Twombly did not unsettle the well-established practice of taking all facts in the complaint as true, however "doubtful in fact." (37) Skepticism about whether the alleged conduct had actually occurred could therefore not justify dismissal of a complaint. Instead, the Court instructed lower courts to ask whether the facts alleged in the complaint actually constitute illegal conduct. (38) Applied to Twombly's complaint, the legal plausibility standard mandated dismissal; after discounting Twombly's conclusory allegation of conspiracy, the remaining allegations of "parallel conduct" were as consistent with conspiracy as with rational economic behavior. (39)

      But while Twombly resolved the definition of plausibility, it ultimately left two other questions unresolved. The first was how to decide which allegations should be dismissed as "legal conclusions." The second and more fundamental question was exactly how plausible a complaint had to be to survive 12(b)(6). That is, while Twombly rendered dispositive the line between "conceivable" and "plausible," it...