Abstract: The ill-advised and unnecessary Notice Pleading Restoration Act of 2009 and the Open Access to Courts Act of 2009 would severely weaken the federal civil pleading standard, encouraging frivolous litigation and harming national security. Such an almost nonexistent pleading standard would weaken U.S. national security, and otherwise impede the government’s ability to function free from vexatious litigation. The proposed legislation could act as an incentive to captured terrorists to allege all sorts of violations of the law in order to conduct discovery expeditions against senior government officials, including the President, to obtain sensitive information vital to protecting the nation’s safety as well as to discourage and deter public officials from making lawful but necessary decisions to protect the country.
If [the Notice Pleading Restoration Act of 2009 is] successful, it would undo a recent Supreme Court ruling that gave us this common sense standard: Before you can sue someone, you have to have a plausible claim they did something wrong.
—William McGurn, Wall Street Journal
Allowing injured plaintiffs to seek redress in the courts without burdensome procedural obstacles while protecting defendants from frivolous and abusive lawsuits is a delicate balancing act. It requires careful consideration of sometimes conflicting factors by the judges and administrators of the U.S. federal court system. For over 70 years, this balance has been maintained by the Federal Rules of Civil Procedure, which require a complaint to consist of a “short and plain statement of the claim showing that the pleader is entitled to relief.” In two recent decisions, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court explained that this “short and plain statement” must include plausible, factual allegations—a low standard, but something more than unfounded, conclusory accusations.
In the wake of Twombly and Iqbal, plaintiffs’ attorneys have launched a concerted effort to weaken this pleading standard by amending the Federal Rules. The proposed amendments would allow unwarranted lawsuits to proceed against defendants who would be required to engage in extensive discovery to fight frivolous claims or to settle such claims in order to avoid the expense of protracted litigation. These amendments would also put national security at risk by making government officials, such as the Attorney General, the target of vexatious and abusive lawsuits, particularly in the fight against terrorism.
Contrary to the campaign of misinformation portraying these decisions as a change in the law that deny injured parties access to justice, traditional notice pleading has not been abolished. A review of pre-Twombly and -Iqbal decisions makes it clear that there has been no fundamental shift in the pleading standard. As former Assistant Attorney General Gregory G. Katsas testified, Twombly and Iqbal “faithfully interpret and apply the pleading requirements of the Federal Rules of Civil Procedure, are consistent with the vast bulk of prior precedent, and strike an appropriate balance between the legitimate interests of plaintiffs and defendants.” Former Solicitor General Gregory G. Garre agreed, concluding that both decisions “are firmly grounded in decades of prior precedent at both the Supreme Court and federal appellate court level concerning the pleading standards under Rule 8 of the Federal Rules of Civil Procedure.”
Those who want to reverse Twombly and Iqbal are not seeking to reestablish prior law. Rather, they want to enact an entirely new pleading standard that gives plaintiffs broad rights to discovery based on nothing more than conclusory allegations and parroting the legal elements of a particular claim. This is, in essence, no pleading standard at all. This change would “open the floodgates for what lawyers call ‘fishing expeditions’—intrusive and expensive discovery into implausible and insubstantial claims.”
Under rule 12(b)(6), a party may ask the court to dismiss a lawsuit for “failure to state a claim upon which relief can be granted”—for example, if the plaintiff’s claim is not recognized by law or the plaintiff has failed to allege facts that amount to a violation of the law. This is the rule that courts use to quickly resolve frivolous or baseless claims without the enormous burdens and expense of protracted litigation.
Last year, Senator Arlen Specter (D-PA) introduced a bill to overturn Twombly and Iqbal by providing that “a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).” A similar bill introduced in the House of Representatives provides that no court may dismiss a lawsuit “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim.” In a move severely restricting the traditional discretion of federal judges, the bill also mandates that a court may not dismiss a complaint “on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff’s claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.”
The House legislation would also override the heightened pleading standards imposed on certain types of litigation by other federal statutes. For example, Congress passed the Private Securities Litigation Reform Act (PSLRA) in 1995 to protect the “integrity of American capital markets” by deterring “abusive and meritless suits.” The PSLRA heightened the pleading standard required for securities fraud complaints to stop “unwarranted fraud claims.” However, H.R. 4115 specifically says that its provisions will govern “except as otherwise expressly provided by an Act of Congress enacted after the date of the enactment of this section.” Thus, the virtually nonexistent pleading standard of H.R. 4115 would nullify the special pleading standard required by Congress for securities litigation. It also seems to override Federal Rule of Civil Procedure 9(b), which requires plaintiffs alleging fraud to state “with particularity the circumstances constituting fraud”—that is, exactly what conduct or statement was allegedly fraudulent.
Both the House and Senate Judiciary Committees have conducted hearings on this issue. Additionally, the Judicial Conference Advisory Committee on Civil Rules is gathering empirical data on whether these recent court decisions have resulted in a significant increase in dismissals at the pleading stage and has urged the House not to pass legislation overturning Iqbal.
Conley’s “No Set of Facts” Standard in Context: Factual Specificity vs. Sufficiency
In its 1957 decision in Conley v. Gibson, the Supreme Court held that black railway employees sufficiently alleged a violation of their statutory rights to fair representation by their union under Rule 8’s pleading standard. The railroad argued for dismissal because “the complaint failed to set forth specific facts to support its general allegations of discrimination.” Relying on Rule 8(a)’s requirement of a “short and plain statement of the claim,” the Supreme Court said that the allegations were sufficiently detailed to “give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”
In addition to lack of specificity, the union also argued that the employees failed to state a claim because its duty of fair representation applied only to the collective bargaining process, which ended when the union entered into a contract with the railroad employer. Because the complaint pertained only to post-contract discriminatory actions, the railroad contended that the employees failed to state a claim under the statute as a matter of law. However, the Supreme Court held that “[a] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him to relief.” Because the Railway Labor Act protected employees even after a collective bargaining contract became effective, plaintiffs’ allegations, if proven, would constitute “a manifest breach of the Union’s statutory duty.”
Thus, under Conley, a complaint can be dismissed under Rule 12(b)(6) if it fails to have the requisite minimal level of either factual specificity to put defendants on notice of the claims alleged against them or factual sufficiency under the substantive law. In the former case, a court can dismiss the complaint without prejudice, allowing a plaintiff the opportunity to amend the complaint with additional specific facts. In the latter case, however, a plaintiff has failed to provide sufficient facts to state a right to relief under the governing substantive law. Because courts have not required plaintiffs to allege all the elements of a claim, dismissal on this ground usually occurs because a plaintiff has essentially “pled himself out of court” by alleging facts inconsistent with an essential element of the claim or demonstrating that recovery is clearly precluded by an affirmative defense. Any amendment to the complaint would prove futile and it can be dismissed with prejudice. Conley’s “no set of facts” language must be understood as espousing the standard for this second category of cases testing the sufficiency of factual allegations under the governing law.
Although Conley was widely cited by lower courts as the governing standard for motions to dismiss, most courts acknowledged that Conley’s “no set of facts” language could not be read in isolation or construed literally. Some even recognized that it could not be used as the standard for factual specificity. Indeed, the Supreme Court itself implicitly suggested that the “no set of facts” standard did not apply to evaluate complaints without factual detail when it cautioned courts against assuming a plaintiff could prove facts not even alleged—something Conley’s “no set of facts” language would otherwise permit.
Twombly: From Impossible to Implausible
In light of a half century of qualifications and explanations for Conley’s “no set of facts” language (and some courts’ increasing tendency to rely on this language in denying motions to dismiss based on lack of specificity), one would not think it controversial that the Supreme Court finally jettisoned this phrase in Bell Atlantic v. Twombly, reasoning that it:
has been questioned, criticized, and explained away long enough...[to have] earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim is stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.
In Twombly, the Supreme Court affirmed a district court’s 12(b)(6) dismissal of a nationwide antitrust class action alleging a conspiracy under Section 1 of the Sherman Antitrust Act against the four largest telecommunications companies in the United States. The plaintiffs claimed the defendants conspired to restrain trade by entering into non-compete agreements and by engaging in specific parallel conduct unfavorable to competition.
Writing for a seven-Justice majority, Justice Souter reaffirmed that Rule 8(a)’s standards do require a minimal level of factual specificity and factual sufficiency under the substantive law. With respect to factual specificity, the Supreme Court broke no new ground. Approvingly quoting Conley’s statement that the allegations must “give the defendant fair notice of what the...claim is and the grounds upon which it rests,” the Supreme Court confirmed that Rule 8 required “more than labels and conclusions [or] a formulaic recitation of the elements of a cause of action.” Indeed, the Court expressly disavowed any notion that it was imposing a “particularity” requirement, just as it had repeatedly rejected heightened pleading standards in prior cases. It is only with respect to factual sufficiency that the Supreme Court modestly clarified that under Rule 8 a complaint must state “enough facts to state a claim to relief that is plausible on its face.”
Significantly, the Supreme Court emphasized the limited nature of both requirements under Rule 8(a)’s notice pleading standard. First, a plaintiff need not “set out in detail the facts upon which he bases his claim,” but must make a “‘showing,’ rather than a blanket assertion, of entitlement to relief.” Second, “[a]sking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.”
The Court held that the plaintiff’s allegations did not meet the minimal requirements of factual specificity and sufficiency “to raise a right to relief above the speculative level.” Bare assertions of conspiracy or conclusory allegations of an agreement do not satisfy the specificity requirement, while the claims of parallel business behavior by the defendants failed as a matter of law on their own to establish any illegal behavior because such behavior is just as consistent with rational and perfectly legal competitive business strategy and behavior.
Although Twombly could be read narrowly to apply only to antitrust pleadings, federal courts largely embraced its plausibility standard more broadly. Last term, the Supreme Court confirmed this approach in Ashcroft v. Iqbal.
Iqbal’s “Two-Pronged” Approach
Iqbal was a Bivens lawsuit filed against numerous officials, including former Attorney General John Ashcroft and FBI Director Robert Mueller, by a Pakistani citizen arrested for fraud related to identification documents. He was convicted and removed from the United States in the immediate wake of the September 11, 2001, terrorist attacks. Iqbal claimed that Ashcroft and Mueller implemented an unconstitutional policy of detaining Arab Muslim men as “persons of high interest.” Because Ashcroft and Mueller moved to dismiss on the grounds of qualified immunity, the narrow issue before the Court was whether Iqbal’s allegations, if taken as true, stated a claim that he was deprived of his constitutional rights.
In a 5-4 opinion, the Supreme Court first clarified the governing substantive law on supervisor liability and concluded that the plaintiff “must plead sufficient factual matter to show that [Ashcroft and Mueller] 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.”
The Supreme Court then restated Twombly’s minimal specificity and plausibility requirements and applied “the two-pronged approach” to the plaintiff’s allegations. First, the Supreme Court weeded out conclusory allegations not entitled to a presumption of truth. For example, the Court discounted bare assertions that Ashcroft was the “principal architect” of the detention policy which subjected Arab Muslim men “to harsh conditions of confinement...solely on account of [their] religion, race, and/or national origin,” and that Mueller was “instrumental” in executing this policy, because such allegations “amount[ed] to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.” On the other hand, the Court determined that the allegation 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” was specific and nonconclusory.
Second, the Court evaluated the legal plausibility of the remaining allegations. Because the September 11 attacks were committed by Arab Muslim hijackers, the investigation into the attacks “would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.” Thus unlawful discriminatory purpose was “not a plausible conclusion” in light of the “obvious alternative explanation.” However, even if the “well-pleaded facts gave rise to a plausible inference that [plaintiff’s] arrest was the result of unconstitutional discrimination,” the plaintiff did not challenge the constitutionality of his arrest or initial detention. Plaintiff’s constitutional claims were based solely on the alleged policy of holding high-interest detainees because of their race, religion, or national origin. Discounting conclusory allegations, the “complaint does not contain any factual allegation sufficient to plausibly suggest [Ashcroft and Mueller]’s discriminatory state of mind”—an essential element of the plaintiff’s constitutional tort claim.
The Supreme Court Did Not Amend the Federal Rules.
Despite the fact that Twombly and Iqbal do not alter the crux of Rule 8 and reaffirm notice pleading as it has been generally understood since the enactment of the Federal Rules in 1938, critics have attacked the Supreme Court for exceeding its authority by supposedly rewriting the federal rules and denying litigants access to justice. Yet, such critics mischaracterize these decisions as an end-run around the Federal Rules. To the contrary, both cases “properly construe the governing provisions of the Federal Rules of Civil Procedure, and they are consistent with decades of prior precedent.” Legislative attempts to override these decisions are “precipitous and unwise, especially insofar as the suggestion is to set a standard in terms of Conley...[a decision that] has generated enormous confusion over the last 50 years and virtually all agree that [its] ‘no set of facts’ language cannot mean what it says.”
Both Twombly and Iqbal reaffirmed notice pleading. Despite testifying in favor of legislatively overruling Twombly’s plausibility standard, Professor Arthur R. Miller acknowledges that while Twombly retires Conley’s “no set of facts” language, it reaffirmed “simplified notice pleading” by “noting that ‘a blanket assertion...without some factual allegation’ would be unlikely to meet [Rule 8’s] requirement.” And in a case decided later in the same term as Twombly, the Supreme Court confirmed its commitment to notice pleading when it labeled the Tenth Circuit’s dismissal of a pro se complaint as a “pronounced” “departure from the liberal pleading standards set forth by Rule 8(a)(2).”
For almost 70 years it has been black-letter law that while courts should accept well-pleaded factual allegations of a complaint as true, conclusory allegations are not entitled to this presumption. Indeed, it is because such allegations are conclusory that they fail to provide a defendant with adequate notice under Rule 8. Prior to Twombly, every circuit court in this country applied this well-established rule of notice pleading.
Critics also lament that these decisions purportedly allow judges to subjectively assess the factual plausibility of the allegations—something the Federal Rules do not permit at the pleading stage. However, the plausibility standard is a legal determination, not a weighing of factual allegations. As the Supreme Court explicitly cautioned in Twombly, “Rule 12(b)(6) does not countenance...dismissals based on a judge’s disbelief of a complaint’s factual allegations.” And again in Iqbal, the Supreme Court stressed that “[i]t is the conclusory nature of [plaintiff’s] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.” 
Access to Justice vs. Absolute Right to Discovery
Some have erroneously pointed to the number of times Twombly has been cited as proof that courts are mechanically applying the plausibility standard to dismiss meritorious claims. Because Twombly and Iqbal effectively clarified well-settled law, it is no surprise that lower courts have frequently cited these decisions. However, citations to Twombly or Iqbal, standing alone, reveal nothing about whether the same result would have ensued had the courts misapplied Conley’s “no set of facts” language.
Furthermore, the assertions that an insurmountable obstacle for injured parties has been raised are belied by even a cursory look at the post-Iqbal case law. As United States District Judge Mark Kravitz of Connecticut, who chairs the Judicial Conference Advisory Committee on Civil Rules, stated, Iqbal has not proved to be “a blockbuster that gets rid of any case that is filed.” A comprehensive study by the Advisory Committee concludes that “most of the case law to date does not indicate a drastic change in pleading standards.” Another empirical study of the 94 federal district court dockets from January 2007 through September 2009 (before and after both the Twombly and Iqbal decisions) revealed no significant rise in dismissals of civil complaints. Both studies severely undercut any notion that post-Iqbal, civil complaints are being dismissed wholesale. To the contrary, courts have applied Twombly and Iqbal to deny motions to dismiss in a wide range of claims from civil rights to commercial claims, and even claims against government officials for actions taken to defend the nation against terrorism.
Far from being “a padlock on the courthouse door,” Twombly and Iqbal sensibly uphold the sequence of litigation procedures mandated by the Federal Rules: Before a plaintiff can enjoy the benefits of the broad discovery provisions under the Rules, he must state specific and legally sufficient facts plausibly showing entitlement to relief. As the Iqbal court succinctly put it, when a complaint “is deficient under Rule 8, [a plaintiff] is not entitled to discovery.” Moreover, the Supreme Court acknowledged the “practical significance of the Rule 8 entitlement requirement” in minimizing expenditures of time and money by all parties—an especially significant concern in complex antitrust actions and suits against government officials.
For all their rhetoric about restoring notice pleading, what plaintiffs’ attorneys actually seek is an absolute right to discovery upon the filing of any complaint, no matter how threadbare its allegations. Rather than using discovery to obtain details of an existing claim, they seek broad latitude to conduct fishing expeditions to find out whether they have a claim at all. This would transform Rule 8 from a shield weeding out meritless claims into a sword to extort settlements from defendants unwilling to bear the heavy costs and burdens of discovery.
Ideologically driven attorneys also want to chill government officials from implementing public policy they disagree with and harass them with broad and intrusive discovery. The Iqbal case itself “graphically illustrate[s] these concerns.” The plaintiff and his lawyers were trying to impose personal liability on the Attorney General and FBI Director for responding to what Second Circuit Judge Cabranes aptly described as “a national and international security emergency unprecedented in the history of the American Republic.” As former Justice Department official Gregory Garre testified, “it has never been more important to ensure that our officials are making the difficult decisions necessary to protect Americans from attack free from concerns about the costs and burdens of litigation targeting such officials for carrying out their vital duties…the Supreme Court appropriately recognized those concerns in reiterating that bare-bones allegations [against] high-ranking officials…do not open the door to discovery.”
A Frivolous and Abusive Amendment
The Supreme Court’s recent rulings in Twombly and Iqbal are a welcome clarification of Conley’s central premise: in order to survive a motion to dismiss, a complaint must be both specific enough to provide fair notice of the claims and the grounds on which it rests and legally sufficient to state a claim under the governing substantive law. Overturning these decisions (and decades of precedent) and amending the Federal Rules to entitle plaintiffs to discovery as a matter of right would literally mean that “[n]o case would be subject to dismissal based on the conclusory nature of a complaint.” There is no question that such amendments would lead to an exponential increase in frivolous and abusive litigation at great cost to the parties, the federal courts, and the American taxpayer, and interfere with the ability of government officials to protect the national security of the United States.
Darpana M. Sheth is a constitutional litigator at the Institute for Justice and a former Assistant Attorney General for the State of New York. The views expressed in this article are her own.