Iqbal and the End of Notice Pleading

The NY Times Sidebar column by Adam Liptak reports that the most consequential case from this year’s term of the US Supreme Court is Ashcroft v. Iqbal., 129 S.Ct. 1937 (2009). The decision involved a complaint by Javaid Iqbal, a Pakistani Muslim arrested on immigration charges in the aftermath of the September 11 attacks. His complaint alleged constitutional violations against the Attorney General and the Director of the FBI for discrimination on the basis of race, religion and national origin for arresting, detaining and subjecting him to harsh conditions and cruel treatment. The US Supreme Court in a 5-4 decision by Justice Kennedy dismissed the complaint for its failure under Federal Rule of Civil Procedure 8(a)(2) to describe with enough detail the officials’ actions that led to the alleged purposeful and unlawful discrimination.

Justice Kennedy majority opinion held that a complaint must contain sufficient facts to form a plausible cause of action and that a judge may utilize common sense to determine if this is the case. It held that broad legal conclusions, with no factual support in the pleading, may not afford a sufficient basis for sustaining the cause of action. Rather than accepting the plaintiff’s allegations as true in Iqbal, the Court created and interposed its own “likely explanations” between the plaintiff’s factual allegations and its legal conclusions. Instead of accepting Iqbal’s allegations that the defendants detained him on account of his race, religion, or national origin in violation of his First and Fifth Amendment rights, the Court wrote on page 18 of his opinion:

The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good 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 Arab Muslim 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 on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.

As Liptak’s article reports, lower courts have cited Iqbal often in the last two months. Running a Westlaw KeyCite check of the case this morning shows 566 citations to it by other courts.The broad roadmap laid out in Iqbal to assess the merits of a complaint may well give lower courts broad latitude to interpose their own explanations and defenses when assessing the sufficiency of a complaint in light of a motion to dismiss under Rule 8. As a result, Iqbal may become the defense bar’s best weapon. For more, see the WSJ Law Blog article Why Defense Lawyers Are Lovin’ the Iqbal Decision. Whether or not Iqbal signals the end of “notice pleading”, it is important that practitioners remember that better practice requires them to draft more specific pleading.