Legal scholarship highlight: The impact of Ashcroft v. Iqbal on civil rights cases
on Nov 14, 2012 at 11:56 am
Ray Brescia is an Assistant Professor of Law at Albany Law School.
In May 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, which explicitly extended the “plausibility standard,” first articulated in Bell Atlantic v. Twombly two years earlier, to all civil pleadings. That standard requires that pleadings, to satisfy Federal Rule of Civil Procedure 8(a), must state a plausible claim for relief. For many, these rulings represented a sea change in civil pleading standards. Where prior Supreme Court precedent had provided that a pleading should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim,” the new standard requires that judges utilize their own “judicial experience and common sense” to determine whether claimants have set forth facts sufficient to “nudge their claims across the line from conceivable to plausible.”
After Twombly, and again after Iqbal, many expressed fears that the new plausibility standard offered judges too much discretion; a judge could dismiss a case where a plaintiff’s claims did not comport with that judge’s experience and common sense. There was a particular fear that this discretion would have a disparate and adverse impact on civil rights cases: for example, if members of the federal bench were predisposed to disfavor such claims, they might use these precedents to dismiss civil rights cases too readily. Several years have now passed since the Court issued these decisions, and the district courts have compiled a body of thousands of decisions citing these precedents. As a result, it is now possible to assess the impact of these decisions on practice in the lower courts, particularly their effect on civil rights cases. The study described in my article in the Kentucky Law Journal attempted to do just that by looking at outcomes and trends in motions challenging the specificity of the pleadings in over six hundred employment and housing discrimination cases over a period of six years (including decisions issued both before and after Twombly and Iqbal).
Initial research into whether there has been a change in dismissal rates since these precedents has revealed a modest impact, at best, on civil litigation generally, and civil rights cases in particular. Previous studies had their limits, however, and the study described here attempted to overcome some of them. First, where other studies looked at overall outcomes in all types of motions to dismiss, this study looked only at motions to dismiss based on the specificity of the pleadings – that is, the central issue in Twombly and Iqbal. What this analysis revealed is that the dismissal rates for the pre-Twombly cases in the database used in this study was sixty-one percent; for those issued between Twombly and Iqbal, it was fifty-six percent; but then, for those issued after Iqbal and which became a part of this study, it was seventy-two percent. While dismissal rates seemed to have gone down after Twombly, they rose again, considerably, after Iqbal.
Second, unlike previous studies, this study attempted to assess how district judges applied the plausibility standard, to determine whether they are deploying the standard in the manner in which the Supreme Court had in Twombly and Iqbal. In those cases, the Court found that a complaint fails to state a plausible claim for relief if a more plausible, and entirely legal, explanation exists for the conduct that allegedly gives rise to the claims contained therein. While in both Twombly and Iqbal, the Court used this “more plausible” test to determine whether the complaints in those cases satisfied Rule 8(a), among the cases analyzed in this study, very few judges utilized this test when considering the sufficiency of the pleadings in the teeth of motions to dismiss. Thus, the Court’s approach to assessing plausibility, as utilized in both Twombly and Iqbal, is one that is rarely applied by district courts when dismissing cases for pleading inadequacies. Similarly, judges rarely, if ever, appear to invoke their own “experience and common sense,” as urged by the Court, when ruling on motions to dismiss in these cases.
Finally, this research also looked at the volume of decisions dismissing cases based on a lack of specificity of the pleadings, and the number of motions litigants are facing on these grounds. My research revealed that both the number of motions based on the lack of specificity of the pleadings and the number of complaints dismissed on these grounds have risen dramatically after the decision in Iqbal. Indeed, among the cases analyzed in this study, decisions on such motions were generated only twelve times in the first quarter of 2004 (the first quarter analyzed), but then sixty times in the third quarter of 2010 (the last full quarter analyzed). This represents a five-hundred-percent increase in motions to dismiss on these grounds. Similarly, when looking at the number of decisions dismissing complaints issued during the pre-Twombly and post-Iqbal periods, we see another dramatic increase, one of roughly 250% from the pre-Twombly period to the post-Iqbal period. At the same time, there was just a twenty-two-percent increase in such dismissals from the pre-Twombly period to the period post-Twombly but before Iqbal.
When comparing Twombly and Iqbal, then, it would appear that it is the latter case that has had a much greater and adverse impact on employment and housing discrimination cases than the former, at least within the universe of cases analyzed in this study.
Perhaps these findings raise more questions than they answer. Do they suggest that courts are ignoring the substance of the plausibility standard, yet interpreting Twombly and, to a greater extent, Iqbal, as license to dismiss cases more readily? Does the nature of the plausibility standard leave judges with broad discretion to dismiss cases that do not comport with their “experience and common sense”? In any event, several things are clear: judges rarely invoke the plausibility standard in the same manner as the Supreme Court, motions to dismiss challenging the sufficiency of the pleadings are much more common in employment and housing discrimination cases since Iqbal, and far more of these cases are being dismissed after that decision than before.
The Iqbal Effect: The Impact of New Pleading Standards in Employment and Housing Discrimination Litigation, 100 Kentucky L. J. 235 (2012).