In my last post, I explored a few of the problems with the interaction between Pearson and Iqbal: that a civil rights plaintiff is caught between saying too much (and getting dismissed because of Pearson) or not saying enough (and getting dismissed because of Iqbal); that, as I explained with the example from DiStiso v. Wolcott, this interaction could not only deter plaintiffs from arguing constitutional theories but also from enforcing constitutional rights; and that changing the Rule 8(a)(2) standard has also implicitly modified the substantive inquiry at "Saucier step one", even though the Court did not frame it that way.
I also noted that the increased discretion that courts are given (to decide which step of the QI analysis to undertake first, and to use "common sense") makes it hard to predict how different courts will deal with identical facts. In this post, I want to expand on the problematic way these two cases handle courts' discretion.
Pearson, as discussed earlier, gives courts the discretion to decide which step of the QI analysis to address first. (By the way, in response to Craig's earlier comment -- in FN 131 of the paper, I cite several cases where courts skipped to step two of the QI analysis and note that as of that writing (six months ago), courts had done so "dozens" of times; I suspect the number is higher now.) But while the case law now gives courts wider discretion to dismiss civil rights claims, they have no corresponding discretion to preserve such claims. In the article, I give an example where , at summary judgment, it is a close question whether a reasonable jury might conclude that there was a violation of a (clearly established) right. If a district court dismisses the claim, it will likely be protected by Pearson. But if it decides to let the case go to trial, it will probably have committed reversible error: although trial courts have various inherent powers, qualified immunity is an immunity from suit, not just liability, so the court will probably be held to have exceeded its discretion.
Moreover, litigants will not know which of the two steps a court will address first. Therefore, they will probably argue both. And, in responding to the arguments raised, a court may well address both arguments, even after disposing of the case on one prong or another. (The Tenth Circuit recently did this in a case I cite.) This in turn results in unnecessary dicta, which is the problem with Saucier sequencing that Pearson ostensibly fixes.
Iqbal also disrupts long-standing law regarding lower courts' discretion. As the Second Circuit explained in its Iqbal decision (Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007)), a trial court, “not only may, but ‘must exercise its discretion in a way that protects the substance of the qualified immunity defense.’” Id. at 149. This discussion quoted Crawford-El v. Britton, 523 U.S. 574, 597-98 (1998). Crawford-El explained that district courts have a wide array of tools at their disposal to carefully manage litigation and ensure that defendants -- and particularly government officials -- are not exposed to vexatious discovery and other litigation demands.
As the Supreme Court explained in Crawford-El, a trial court has the power, inter alia, to order a reply to the defendant’s answer per Rule 7 or require a more definite statement of the
plaintiff’s claims per Rule 12. “Thus, the [district] court may insist that the plaintiff put forward specific, nonconclusory factual allegations that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment.” Id. at 598. In Iqbal, the Court instructed that conclusory allegations must be disregarded altogether. Yet in Crawford-El, the Court specifically explained how trial judges were to use their discretion to more fully elaborate on such allegations in the course of testing a plaintiff's complaint. Iqbal makes no mention of Crawford-El, and therefore litigants must assume it is still good law, but there is no reasonable way to square the two decisions.
And this sort of carefully managed discovery process is nothing new. For years, courts have permitted plaintiffs to take limited jurisdictional discovery when there was a question as to whether personal jurisdiction existed in a particular forum. And consider this: Rule 9(b) imposes a heightened pleading requirement in certain cases. But the circuits were uniformly agreed, pre-Iqbal, that Rule 9(b)’s requirements were relaxed when the facts material to a fraud claim were in the defendant’s exclusive possession and could be obtained only through discovery. But it cannot now be the case that Rule 8's general allegations have to meet a higher standard than those that, per Rule 9, must be pled with particularity. Again, Iqbal makes no mention of this problem.
So Iqbal effectively rachets back district courts’ discretion, instructing them to dismiss a complaint outright when a complaint’s well-pleaded factual allegations are deemed implausible. But it also expands district courts’ discretion in another, important direction: it instructs courts to make this decision based on their “judicial experience and common sense." The problem, of course, is that this kind of a determination is so open-ended as to be almost unreviewable.
So this is the second major problem with Pearson-Iqbal: all of the discretion cuts one way. Pearson’s rule that sequencing is now voluntary increases a court’s discretion to dismiss civil
rights claims; Iqbal’s conclusion that discovery management is an inadequate tool decreases a court’s ability to preserve civil rights claims; Iqbal’s directive to rely on common sense increases a court’s ability to dismiss such claims.
Of course, it is possible to devise a rule that would have balanced the interests of civil rights plaintiffs and defendants. For example, the Supreme Court could have (and I submit should have) announced the following rule, consistent with Twombly and pre-Twombly authority: (1) civil rights claims require no heightened pleading standard; (2) if the allegations regarding a particular defendant’s actions are “conclusory,” a court is to determine whether the claims against him are consistent with liability and, if so, whether the facts necessary to support such a claim are likely to be in the defendant’s possession. If so, the court could order limited discovery or use other procedural tools — as described in Crawford-El — to permit the plaintiff an opportunity to determine if he can make out a claim against the defendant. If so, the case would proceed in the normal course; if not, the case would be dismissed. Again, such a formulation preserves the defendant’s interest in avoiding discovery intended only to harass, while permitting the district court to operate with a scalpel rather than a mallet (and a rather one-dimensional mallet at that, since a court’s only option in such a context is dismissal).
We're getting to the end. Because this series has gone on for a while, I'll take a break in my next post and respond to some reader comments. I'll wrap up with a discussion of procedural judicial activism and why we should worry about it.