Moving Further Away from Notice Pleading

On Monday, the US Supreme Court made clear in Ashcroft v. Iqbal (No. 07-1015) that its new formulation of pleading standards in the Twombley case, has broad application. Arguably, the Court raised the pleading bar even higher, as the Court's opinion could be read to encourage examination of the surface plausibility of the factual allegations of the complaint, and to allow courts to reject complaints if these factual allegations are deemed too "conclusory."



The case involved civil rights claims against the Attorney General, the FBI director, and others, on behalf of a Pakistani citizen who was arrested in the United States in the wake of the September 11 attacks. Plaintiff alleged that these high-ranking officials were the "principal architect" of and "instrumental" in carrying out a policy of harsh confinement of individuals based on their ethnicity, religion or national origin. These allegations were held too conclusory to meet Twombley's "plausibility" standard. Further, the Court held that the complaint failed sufficiently to allege that the defendants had adopted a policy of separately classifying persons of high interest based on their ethnicity or religion. The Court made clear that it was not rejecting the plaintiff's allegations as unrealistic or nonsensical, only that they were too conclusory. The court justified this result based on its supposition that a legitimate dragnet could have a disparate impact on Muslims or Arabs that would not necessarily have resulted from intentional discrimination.

Perhaps the heightened level of scrutiny given to Iqbal's complaint could be explained by judicial deference to the government's law enforcement efforts in the wake of the September 11 attacks. Perhaps it merely signals that the era of indulgence given to civil rights claims dating back to the 1950's and 1960's is over. Whatever the reason, the Court's striking down of this complaint will certainly inspire even more defendants to file even more motions to dismiss all kinds of complaints for failure to state a claim.