Q&A
The Iqbal Decision Affects Civil Pleading1
Produced by Jane Perkins
National Health Law Program
July 2009
Q. Our most disabled clients are experiencing problems obtaining community
based services. We are considering a federal court case to argue that
officials with the state department of health and their contractors are
implementing policies that discriminate against our clients based on their
disability. Are there recent cases that we should review?
A. Yes. Ashcroft v. Iqbal announced standards that affect how complaints
must be pled and included discussion that could affect government
officials? liability. The Court found Javaid Iqbal?s complaint did not provide
sufficient factual allegations to plausibly support his claim that highranking Bush administration officials had discriminated against him
because he is an Arab Muslim.
Discussion
On its face, Ashcroft v. Iqbal does not appear to have anything to do with
discrimination claims against state health officials. See 129 S.Ct. 1937 (2009). The
case concerns the detention activities of the FBI following the September 11th attacks.
Javaid Iqbal, a Pakistani Muslim, filed a ?Bivens? action against federal prison
guards, wardens, and numerous federal officials, including Attorney General John
Ashcroft and FBI Director Robert Mueller.2 The complaint alleged that Mr. Iqbal was
arrested in November 2001 and placed in a maximum security prison where he was
beaten, subjected to unjustified strip searches, prevented from engaging in prayer, and
berated as a terrorist. Mr. Iqbal alleged that ?under the direction of Defendant Mueller,?
the FBI arrested and detained Arab Muslim men; that Defendants Ashcroft and Mueller
approved a policy of detaining and holding these men in highly restrictive environments;
and that ?each knew of, condoned, and willfully and maliciously agreed to subject? Mr.
Iqbal to harsh conditions ?as a matter of policy, solely on account of [his] religion, race,
and/or national origin and for no legitimate penological interest.? 129 S.Ct. at 1944
(quoting complaint). Ashcroft was named as the ?principle architect? of the policy and
Mueller as ?instrumental in [its] adoption, promulgation, and implementation.? Id. Mr.
Iqbal claimed that these actions by defendants Ashcroft and Mueller violated his First
and Fifth Amendment rights. Id.
A 5-4 majority of the Supreme Court decided that the complaint did not state a
claim against Ashcroft and Mueller. The Court held the pleadings did not meet the
standards of Fed. R. Civ. P. 8 but also included an unnecessary discussion of individual
liability. The majority repeatedly expressed concern with results?namely that litigation
not interfere with ?the proper execution of the work of the Government? in response to
the unprecedented attacks of September 11. 129 S.Ct. at 1953.
Rule 8 after Twombly/Iqbal
Under Rule 8(a)(2), a pleading must contain a ?short and plain statement of the
claim showing that the pleader is entitled to relief.? Until recently, courts applied 50-
year-old precedent to determine whether a complaint met the requirements of Rule 8. A
complaint would not be dismissed for failure to state a claim unless it appeared ?beyond
doubt? that the plaintiff could ?prove no set of facts in support of his claim which would
entitle him to relief.? Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The district court in
Iqbal applied this standard to deny the defendants? motion to dismiss.
Two years ago, in Bell Atlantic Corp. v. Twombly, the Supreme Court backed
away from Conley and announced a ?plausibility standard.? 550 U.S. 544 (2007). The
Twombly Court pointed out that, under Rule 8, the complaint must ?give the defendant
fair notice of what the ? claim is and the grounds upon which it rests.? Id. at 555
(quoting Conley, 355 U.S. at 47). According to the Court, such grounds require ?more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.? Id. Thus, ?naked assertion? devoid of ?further factual enhancement?
will not do. Id. at 570. Rather, to survive a motion to dismiss, a complaint must allege
facts, accepted as true, to ?state a claim to relief that is plausible on its face.? Id. The
court of appeals in Iqbal applied this standard to deny the defendants? motion to
dismiss.3
Reversing the Second Circuit, Iqbal reinforces Twombly. According to the Iqbal
Court, two principles underlie the decision in Twombly. First, conclusory factual
allegations are not enough. While Rule 8 departs from the ?hyper-technical, codepleading regime of a prior era,? it does not, according to the Court, ?unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.? 129 S.Ct. at 1949-
50.4 Writing for the majority, Justice Kennedy noted the plausibility standard ?demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.? Id. at
1949. The ?sheer possibility that a defendant has acted unlawfully? is not enough, and a
complaint that pleads facts that are ?merely consistent with? liability ?stops short of the
line between possibility and plausibility of ?entitlement to relief.?? Id. (citing Twombly,
550 U.S. at 557). Winding the discussion back to Rule 8, the Court held that when wellpleaded facts do not permit the court to infer more than the possibility of misconduct,
?the complaint has alleged?but it has not ?show[n]??that the pleader is entitled to
relief.? Id. at 1950 (citing Fed. R. Civ. P. 8(a)(2)).
The second Twombly principle cited in Iqbal concerns the demeanor of the
reviewing judge. According to the Court, the review of the complaint will be ?contextspecific,? requiring the court to ?draw on its judicial experience and common sense.? Id.
at 1940.
Applying this souped-up plausibility test to Mr. Iqbal?s allegations, the Court, first,
?identif[ied] the allegations in the complaint that are not entitled to the assumption of
truth.? Id. at 1951 (emphasis added). As noted above, the complaint alleged that the
defendants ?knew of, condoned, and willfully and maliciously agreed? to subject Mr.
Iqbal to confinement ?solely on account of his religion, race, and/or national origin and
for no legitimate penologic interest.? The complaint further alleged that Ashcroft was the
?principle architect? of the policy and that Mueller was ?instrumental? in implementing it.
According to the Court, these allegations were ?bare assertions? that amounted to
nothing more than a ?formulaic recitation of the elements? of a discrimination claim. Id.
The Court concluded that ?the conclusory nature of respondent?s allegations, rather than
their extravagantly fanciful nature, ? disentitles them to the presumption of truth.? Id.
Compare 129 S.Ct. at 1961 (Souter, J., dissenting) (illustrating how the majority picks
and chooses which allegations to highlight as conclusory, while ignoring other
allegations that detailed the government policies).
The Court next considered the remaining factual allegations to determine
whether they plausibly suggested an entitlement to relief. The Court found the
complaint was insufficient because it did not ?show, or even intimate? that Ashcroft and
Mueller purposefully housed detainees in the maximum security setting because of their
race, color, and/or national origin. Id. at 1951-52. What is most interesting about this
aspect of the decision is that the Court goes outside of the pleadings to find an ?obvious
alternative explanation? and draw its own conclusions about the defendants? state of
mind. Id. at 1951 (discussing a nondiscriminatory intent to ?detain aliens .. who had
potential connections to those who committed the terrorist attacks?). Compare Fed. R.
Civ. P. 9(b) (?Malice, intent, knowledge, and other conditions of a person?s mind may be
alleged generally.?). The Court was clearly affected by the context of the case and
protective of government officials who were dealing with the aftermath of the September
11 attacks.
The significance of this decision cannot be underplayed. While Iqbal did set forth
allegations that were consistent with the defendants? liability, the Court found them to be
too conclusory and required, instead, that the complaint allegations show the reviewing
judge that the pleader is entitled to relief. It is not clear how, absent discovery or a wellplaced mole, Mr. Iqbal could have alleged more.
Nevertheless, to withstand the plausibility test announced in Iqbal, a complaint
will need to place heavy emphasis on factual allegations. However, even with well-pled
factual allegations, the Court has injected an unmistakable element of subjectivity into
the review by allowing the trial judge to disregard allegations when his ?common sense?
tells him that he does not believe in the plaintiffs? case. And while the complaint
included allegations that a legal violation had occurred, the court went outside of the
pleadings to find alternative explanations for why the government officials acted as they
did.
Qualified immunity also discussed
The majority included an uncalled for, but significant discussion of the
requirements for holding high-ranking officials liable for the acts of their subordinates.
As noted, the plaintiff filed a Bivens action against the government officials. The Court
has long held that government officials will not be held liable for the conduct of their
employees and agents under a theory of respondeat superior. See Iqbal, 129 S.Ct. at
1948 (citing cases). However, this immunity is qualified, and government officials can
be held liable under ?a spectrum of possible tests for supervisory liability.? See Id. at
1958 (Souter, J. dissenting) (describing various tests). Plaintiff Iqbal relied upon one of
these tests, alleging that the defendants were liable because of their ?knowledge and
acquiescence in their subordinates?? unlawful conduct. Id. at 1949. The Court did not
accept this theory; stating:
[T]o state a claim based on a violation of a clearly established right, respondent
[Iqbal] must plead sufficient factual matter to show that petitioners adopted and
implemented the detention policies at issue not for a neutral, investigative reason
but for the purpose of discriminating on account of race, religion, or national
origin. .. [E]ach Government official, his or her title notwithstanding, is only liable
for his or her own misconduct.
Id. at 1948-49 (emphasis added). Thus, the federal officials needed to have more than
knowledge of or acquiesce in the Constitutional violation; rather, they needed to have
participated in it. This discussion could be particularly far reaching because courts?
reasoning on supervisory responsibility typically applies to both Bivens-type actions
involving federal officials and to section 1983 actions involving state officials.
In a stinging dissent, Justice Souter complains that the Court?s discussion of
supervisory liability is ?especially inappropriate.? 129 S.Ct. at 1957 (Souter, J.,
dissenting). It occurred sua sponte, without any briefing from the parties. Id. at 1956-
57. Moreover, the discussion had no bearing on the majority?s resolution of the case.
Id. at 1954-55, 1958. Although the majority stated that it needed to establish the
elements of supervisory responsibility so that it could determine whether the plaintiff had
made the requisite showing under Rule 8, the dissent points out that this was ?uncalled
for.? Id. at 1956-57. This is because defendants Ashcroft and Mueller had conceded in
their petition for certiorari that the plaintiffs? theory of liability was correct and that they
would be liable if they had actual knowledge of the discrimination by their subordinates
and had exhibited deliberate indifference to that discrimination. Id. at 1956 (citing Pet.
for Cet. 29 and noting that the defendants had only asked the Court to decide whether
they could be held personally liable on the theory that they had constructive notice of
their subordinates? unconstitutional conduct). While Justice Souter expresses fear that
the majority opinion has actually eliminated Bivens supervisory responsibility, that
concern will await future clarification as to whether this discussion was dicta.
The dissent also takes the majority to task for its supercharged application of
Twombly:
Twombly does not require a court at the motion-to-dismiss stage to consider
whether the factual allegations are probably true. We made it clear, on the
contrary, that a court must take the allegations as true, no matter how skeptical
the court may be…. The sole exception to this rule lies with allegations 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. That is not what
we have here.
Id at 1959.
Conclusions and Recommendations
The parameters of the Iqbal decision are still to be determined. Clearly, the case
will be used to extend extremely strong protection to government officials for the range
of their responses to the September 11 attacks. The case will also affect civil
proceedings in general. Advocates should:
? Read Iqbal and carefully refer to it when preparing a complaint. Opinions from
the lower courts should also be consulted. Not surprisingly, the case is causing a
stir. Since it was announced on May 18, 2009, over 600 cases have cited it.
? Remember that Iqbal and Twombly have revised the Rule 8 pleading standard
and that there will be tension as the lower courts match the plausibility standard
against the requirements of Rule 8. On its face, Rule 8(a) still requires only
notice pleading, a short and plain statement of the claim showing that the pleader
is entitled to relief. However, Iqbal/Twombly interject notions of ?plausibility? and
?common sense? into the mix that could cause some judge to approach
complaints with affirmative skepticism. Accordingly, plaintiffs must strive to keep
the proper lens on the review. ?[I]n keeping with Rule 8(a), a complaint should
only be dismissed at the pleading stage where the allegations are so broad, and
the alternative explanations so overwhelming, that the claims no longer appear
plausible.? Chao v. Bastillo,_ F. Supp. 2d _, 2009 WL 1910954, at *5 (D. Mass.
July 1, 2009).
? When drafting a complaint, focus on fully establishing the context of the case and
concrete facts. As Iqbal makes clear, the plausibility standard is highly
contextual. It will depend on the particular claims asserted, the elements of
these claims, and the entirety of the factual landscape alleged in the complaint.
Avoid broad and sweeping factual statements. The facts should be set forth in
full?with clear explanation of each defendant?s unlawful conduct. Avoid
conclusory statements or use them only after the particular facts have been
amplified. As the district court in Chao v. Bastillo noted, ?Allegations become
?conclusory? where they recite only the elements of the claim and, at the same
time, the court?s commonsense credits a far more likely inference from the
available facts.? Id. (citing Madanado v. Fontanes, 568 F.3d 263 (1st Cir. 2009).
? When describing the facts of your case, remember that the judge will be
reviewing them against his own experience and common sense. Account, when
necessary, for alternative explanations for the defendants? conduct. And if a
motion to dismiss is filed, distinguish the context of your case from that of Iqbal
and the Iqbal Court?s repeated concern that the Bush administration officials
faced ?a national and international security emergency unprecedented in the
history of the American Republic.? 129 S.Ct. at 1954.
? Iqbal can also affect pending complaints. If a court should decide that a pending
complaint fails to meet the pleading standard, ask the court to allow you to
amend the complaint rather than dismiss the case. See generally Moss v. U.S.
Secret Service, _ F.3d _, 2009 WL 2052985, at *1 (9th Cir. July 16, 2009)
(reversing district court?s denial of motion to dismiss and stating that plaintiffs
should be granted leave to amend their complaint so that they have the
opportunity to comply with Iqbal/Twombly).
? Monitor federal legislative developments. Senator Arlen Specter has introduced
the ?Notice Pleading Restoration Act of 2009? to reverse the pleading standards
announced in Iqbal and Twombly. The bill states that, unless Congress or the
Federal Rules of Civil Procedure provide otherwise, federal courts will not
dismiss complaints under Rule 12(b)(6) or (e) of the Federal Rules of Civil
Procedure, except under the standards set forth by the Supreme Court in Conley
v. Gibson. See S.1504, 111th Cong (2009).
1 Produced by NHeLP with grants from the Nathan Cummings Foundation, the Public Welfare
Foundation, and the Training Advocacy Support Center (TASC), which is sponsored by the Administration
on Developmental Disabilities, the Center for Mental Health Services, the Rehabilitation Services
Administration, the Social Security Administration, and the Health Resources Services Administration.
TASC is a division of the National Disabilities Rights Network (NDRN).
2 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388(1971), recognizes an implied
private cause of action for damages against federal officials alleged to have violated the plaintiff?s
constitutional rights. The Iqbal majority notes that implied causes of action are disfavored and that it
could have decided against Iqbal by refusing to extend Bivens to a claim sounding in the First
Amendment. However, obviously wanting to discuss other issues, the Court assumed without deciding
that the First Amendment claim was actionable under Bivens. See Iqbal, 129 S.Ct. at 1948.
3 Justice Steven?s bitter dissent in Twombly pointed out that the majority?s rebuke of the Conley
standard had not been sought by any party before the Court. Twombly, 550 U.S. at 579 (Stevens, J.,
dissenting). He concluded that the ?transparent policy concern that drives the decision is the interest in
protecting antitrust defendants?who in this care are some of the wealthiest corporations in our
economy?from the burdens of pretrial discovery,? a concern which should not ?provide an adequate
justification for this law-changing decision.? Id. at 596. Interestingly, the Court appeared to mitigate
Twombly one week later in a per curium decision that allowed a pro se plaintiff to proceed with his
complaint. See Erickson v. Pardus, 127 S.Ct. 2197 (2007). However, Ashcroft v. Iqbal makes it clear
that the Court intended Twombly to reject the straightforward notice pleading that governed civil
complaints for over 50 years. For a more comprehensive discussion of Twombly, see Jane Perkins, Gill
ord, Matthew Diller, & Gary F. Smith, The Supreme Court?s 2006-2007 Term: The Shift to the Right
Takes Shape, 41 CLEARINGHOUSE REV. J. OF POV. L.& POL. 442, 442-45 (Nov.-Dec. 2007).
4 Justice Breyer?s separate dissent points out the result-oriented nature of the decision, noting
that there are numerous case management and discovery limitations that trial courts have historically
employed to avoid unwarranted burdens on public officials. See 129 S.Ct. at 1961-62 (Breyer, J.,
dissenting).
