Pearson-Iqbal, Part II

In this post I'll continue with an overview of my forthcoming article, Pearson, Iqbal, and Procedural Judicial Activism. In Part I, I explained why the Supreme Court's decision in Pearson v. Callahan was problematic: by permitting courts to skip to the second step of the qualified immunity analysis, Pearson will, over time, reduce the universe of claims available to civil rights plaintiffs.

The story is more straightforward with Ashcroft v. Iqbal. Although that case was, at least on one level, a qualified immunity case, the ultimate disposition turned on pleading standards. Iqbal, a Pakistani national living in the U.S., was picked up by federal authorities shortly after September 11 on certain fraud charges. He alleged that, while in prison, he was abused by low-level guards, at the direction of, and with the knowledge of, high-level government officials. The question the Supreme Court addressed was "whether conclusory allegations that high-level government officials had knowledge of alleged wrongdoing by subordinate officials are sufficient to survive a motion to dismiss in an action brought under Bivens."

The court held that a plaintiff's complaint was to be tested in accordance with a two-step process. First, the court was to disregard all "conclusory" allegations. Second, the court was to determine whether the non-conclusory allegations, assumed to be true, gave rise to a "plausible" entitlement to relief.

This two-step process is fraught with problems. The relevant passage in Iqbal reads, “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. [Twombly, 550 U.S.] at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we 'are not bound to accept as true a legal conclusion couched as a factual allegation' (internal quotation marks omitted))."

But this paragraph is sloppy; it equates "conclusory statements" with "legal conclusion[s]", even though these are two different concepts. But certain conclusory statements, even under a properly-applied Iqbal standard, are entitled to the assumption of truth. For example, the statement that "X was walking down the street," though conclusory -- it provides no facts to suggest that X actually was walking down the street -- is entitled to the assumption of truth. "X was negligent," on the other hand, is not. Of course, the two statements are equally "conclusory"; the former is a factual conclusion and the latter is a legal conclusion.

So perhaps Iqbal meant to say that legal conclusions are not assumed to be true? But this cannot be: as Justice Souter wrote in his dissent, there are factual conclusions that are also not entitled to the assumption of truth: "that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel." And the majority's did not limit its plausibility standard this (or any) way. Instead, a court is to rely on its “judicial experience and common sense” in determining whether a claim is plausible, after disregarding “conclusory” allegations. Thus, in its attempt to discard improperly pled (factual? legal?) allegations, a court must necessarily draw on its own views as to what the facts are, or should be.

Iqbal also elevates form over substance. "X discriminated against me because of my race" is conclusory and would be disregarded. But "X discriminated against me; I am an Arab Muslim; non-Arab, non-Muslims were not discriminated against" probably would pass muster, even under Iqbal. But the second formulation adds nothing, as a practical matter, to the first.

There are a variety of other criticisms of Iqbal that I summarize briefly in my article. My only point here is to highlight the fact that Iqbal does not even necessarily hold water on its own terms. (Professor Arthur Miller, in Congressional testimony, has expounded some other criticisms, including the idea that Iqbal is the culmination of a line of cases steadily eroding our commitment to civil litigants' day in court.) I do not intend to be exhaustive here about all of these criticisms. I just want to point out that, by raising pleading standards, Iqbal raises the bar on plaintiffs, making it harder for civil plaintiffs to prevail on their claims.

In my next post(s), I will explain how the interaction between Pearson and Iqbal harms civil rights plaintiffs, and how this exemplifies what I call "procedural judicial activism." I'll also respond to the comments -- look forward to hearing more.