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“The Plausability Bar”

Tuesday, July 21, 2009  |  posted by Hugh Hewitt
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It has been no secret among those of us who defend businesses in court that the Supreme Court’s May decision is Ashcroft v. Iqbal was a long-overdue injection of fairness into civil litigation.

Now the New York Times does a survey of the near-term after-effects of the decision and discovers that many judges are taking the Court’s direction seriously and dismissing implausible claims against businesses without first obliging them to endure costly and destructive discovery proceedings.

Rest assured that the genuinely injured won’t find Iqbal to be a bar of any sort, and that the vast majority of civil filings will easily pass this first-level of scrutiny.

But if even the worst strike suits can be flushed from the system early on by a rigorous application of the Iqbal standard, everyone wins including plaintiffs seeking quicker judgment, wrongly accused businesses and individuals, and of course the economy as a whole.

For the convenience of the reader, here are the key portions of Justice Kennedy’s opinion:[# More #]

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id., at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. The plausibility standard is not akin to a “probability requirement,” but it asks for morethan a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stopsshort of the line between possibility and plausibility of ‘entitlement to relief.'” Id., at 557 (brackets omitted).

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., 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 notbound to accept as true a legal conclusion couched as afactual allegation” (internal quotation marks omitted)).Rule 8 marks a notable and generous departure from thehyper-technical, code-pleading regime of a prior era, but itdoes not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether acomplaint states a plausible claim for relief will, as theCourt of Appeals observed, be a context-specific task thatrequires the reviewing court to draw on its judicial experience and common sense. 490 F. 3d, at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, thecomplaint has alleged-but it has not “show[n]”-“that thepleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering amotion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausiblygive rise to an entitlement to relief.

Our decision in Twombly illustrates the two-prongedapproach. There, we considered the sufficiency of a complaint alleging that incumbent telecommunications providers had entered an agreement not to compete and toforestall competitive entry, in violation of the Sherman Act, 15 U. S. C. ?1. Recognizing that ?1 enjoins only anticompetitive conduct “effected by a contract, combination,or conspiracy,” Copperweld Corp. v. Independence Tube Corp., 467 U. S. 752, 775 (1984), the plaintiffs in Twomblyflatly pleaded that the defendants “ha[d] entered into a contract, combination or conspiracy to prevent competitive entry . . . and ha[d] agreed not to compete with one another.” 550 U. S., at 551 (internal quotation marks omitted). The complaint also alleged that the defendants’ “parallel course of conduct . . . to prevent competition” andinflate prices was indicative of the unlawful agreement alleged. Ibid. (internal quotation marks omitted).

The Court held the plaintiffs’ complaint deficient underRule 8. In doing so it first noted that the plaintiffs’ assertion of an unlawful agreement was a “‘legal conclusion'” and, as such, was not entitled to the assumption of truth. Id., at 555. Had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim for relief and been entitled to proceed perforce. The Court next addressed the “nub” of the plaintiffs’ complaint-the well-pleaded, nonconclusory factual allegation of parallel behavior-to determine whether it gave rise to a “plausible suggestion of conspiracy.” Id., at 565-566. Acknowledging that parallel conduct was consistent with an unlawful agreement, the Court nevertheless concludedthat it did not plausibly suggest an illicit accord because it was not only compatible with, but indeed was more likelyexplained by, lawful, unchoreographed free-market behavior. Id., at 567. Because the well-pleaded fact of parallelconduct, accepted as true, did not plausibly suggest anunlawful agreement, the Court held the plaintiffs’ complaint must be dismissed. Id., at 570.

B Under Twombly‘s construction of Rule 8, we conclude that respondent’s complaint has not “nudged [his] claims” of invidious discrimination “across the line from conceivable to plausible.” Ibid. We begin our analysis by identifying the allegations inthe complaint that are not entitled to the assumption oftruth. Respondent pleads that petitioners “knew of, condoned, and willfully and maliciously agreed to subject [him]” to harsh conditions of confinement “as a matter ofpolicy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.”Complaint ?96, App. to Pet. for Cert. 173a-174a. The complaint alleges that Ashcroft was the “principal architect” of this invidious policy, id., ?10, at 157a, and that Mueller was “instrumental” in adopting and executing it, id., ?11, at 157a. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a “formulaic recitation of the elements” of a constitutional discrimination claim, 550 U. S., at 555, namely, that petitioners adopted a policy “‘because of,’ notmerely ‘in spite of,’ its adverse effects upon an identifiablegroup.” Feeney, 442 U. S., at 279. As such, the allegations are conclusory and not entitled to be assumed true. Twombly, supra, 550 U. S., at 554-555. To be clear, we do not reject these bald allegations on the ground that theyare unrealistic or nonsensical. We do not so characterize them any more than the Court in Twombly rejected theplaintiffs’ express allegation of a “‘contract, combination orconspiracy to prevent competitive entry,'” id., at 551, because it thought that claim too chimerical to be maintained. It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, thatdisentitles them to the presumption of truth.

We next consider the factual allegations in respondent’scomplaint to determine if they plausibly suggest an entitlement to relief. The complaint alleges that “the [FBI],under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11.” Complaint ?47, App. to Pet. for Cert. 164a. It further claims that “[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until theywere ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.” Id., ?69, at 168a. Taken as true, these allegations are consistent with petitioners’ purposefully designating detainees “of high interest”because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose. 18 ASHCROFT v. IQBAL Opinion of the Court

The September 11 attacks were perpetrated by 19 ArabMuslim hijackers who counted themselves members ingood standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim-Osama bin Laden-and composed in large part of his ArabMuslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact onArab Muslims, even though the purpose of the policy wasto target neither Arabs nor Muslims. On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that “obvious alternative explanation” for the arrests, Twombly, supra, at 567, and the purposeful, invidious discrimination respondent asks us toinfer, discrimination is not a plausible conclusion.

But even if the complaint’s well-pleaded facts give riseto a plausible inference that respondent’s arrest was the result of unconstitutional discrimination, that inference alone would not entitle respondent to relief. It is important to recall that respondent’s complaint challenges neither the constitutionality of his arrest nor his initialdetention in the MDC. Respondent’s constitutional claims against petitioners rest solely on their ostensible “policy of holding post-September-11th detainees” in the ADMAXSHU once they were categorized as “of high interest.”Complaint ?69, App. to Pet. for Cert. 168a. To prevail on that theory, the complaint must contain facts plausiblyshowing that petitioners purposefully adopted a policy ofclassifying post-September-11 detainees as “of high interest” because of their race, religion, or national origin.

This the complaint fails to do. Though respondentalleges that various other defendants, who are not before us, may have labeled him a person of “of high interest” for impermissible reasons, his only factual allegation against petitioners accuses them of adopting a policy approving “restrictive conditions of confinement” for post-September11 detainees until they were “‘cleared’ by the FBI.” Ibid. Accepting the truth of that allegation, the complaint doesnot show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national origin. All it plausibly suggests isthat the Nation’s top law enforcement officers, in theaftermath of a devastating terrorist attack, sought to keepsuspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity. Respondent does not argue, nor can he, that such a motive would violate petitioners’ constitutional obligations. He would need to allege more by way of factual content to “nudg[e]” his claim of purposeful discrimination”across the line from conceivable to plausible.” Twombly, 550 U. S., at 570.

To be sure, respondent can attempt to draw certain contrasts between the pleadings the Court considered in Twombly and the pleadings at issue here. In Twombly, the complaint alleged general wrongdoing that extendedover a period of years, id., at 551, whereas here the complaint alleges discrete wrongs-for instance, beatings-by lower level Government actors. The allegations here, iftrue, and if condoned by petitioners, could be the basis forsome inference of wrongful intent on petitioners’ part. Despite these distinctions, respondent’s pleadings do notsuffice to state a claim. Unlike in Twombly, where the doctrine of respondeat superior could bind the corporatedefendant, here, as we have noted, petitioners cannot beheld liable unless they themselves acted on account of aconstitutionally protected characteristic. Yet respondent’scomplaint does not contain any factual allegation sufficient to plausibly suggest petitioners’ discriminatory state of mind. His pleadings thus do not meet the standard necessary to comply with Rule 8.

It is important to note, however, that we express no opinion concerning the sufficiency of respondent’s complaint against the defendants who are not before us.Respondent’s account of his prison ordeal alleges seriousofficial misconduct that we need not address here. Our decision is limited to the determination that respondent’scomplaint does not entitle him to relief from petitioners.

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