Two Recent Post-Iqbal Pleading Decisions in the Circuits
Several years ago the Supreme Court articulated what it termed a plausibility standard for pleading in federal courts. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)(antitrust) and, especially, Ashcroft v. Iqbal, 556 U.S. 662 (2009)(Bivens action vs. federal officials). Precisely what this meant in real-world terms was not entirely clear, and federal courts and litigants have since struggled with the plausibility standard and its relation to notice pleading in federal courts.
Last year, in a post dated 5-13-11, I set out several post-Iqbal decisions from three circuits. This year, as I was again preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2011; West Group)(CIVLIBLIT on WESTLAW), I came across two additional circuit court decisions applying Iqbal. I want to share them with you in advance of publication this fall of the 2012 Update.
In Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1 (1st Cir. 2011), the First Circuit reversed the district court that had dismissed political discrimination claims brought by fourteen maintenance and domestic workers, all belonging to Puerto Rico’s Popular Democratic Party, against the governor, his wife, the chief of staff and administrator, all belonging to the New Progressive Party. The plaintiffs were all dismissed after the governor’s election.
After analyzing Iqbal, the First Circuit determined that the plaintiffs plausibly alleged that the defendants knew of their political affiliation, in part because the defendants allegedly asked several of the plaintiffs how they got their jobs in the first place. Also, there were allegations that clerical staff directly inquired into plaintiffs’ political affiliation. Moreover, the district court erred in failing to evaluate the cumulative effect of these factual allegations. Finally, the plaintiffs plausibly alleged the defendants’ personal involvement in their impermissible termination, even if there was no “smoking gun.” In short, “Read as a whole, the plaintiffs’ complaint unquestionably describes a plausible discriminatory sequence that is all too familiar in this circuit.”
Compare Redondo Waste Systems, Inc. v. Lopez-Freytes, 659 F.3d 136, 140 (1st Cir. 2011), where the plaintiff company sued members of Puerto Rico’s Environmental Quality Board for various constitutional violations stemming from the defendants’ more favorable treatment of plaintiff’s competitor. Affirming the dismissal of the complaint, the First Circuit declared: “The complaint fails the plausibility test spectacularly. Not only is no defendant specifically linked to any actionable conduct, but one of the captioned defendants is not even mentioned in the body of the complaint.”
In a Seventh Circuit case involving an arrestee’s claim that he was severely mistreated by state corrections employees in violation of due process because he was allegedly denied food or water for a number of days, Judge Posner affirmed the dismissal of the complaint in light of Iqbal. “We are left in darkness as to whether the plaintiff is actually alleging that [the now deceased arrestee] was denied food or water for four days, or for a lesser, but still constitutionally significant, length of time.” Atkins v. City of Chicago, 631 F.3d 823, 831-832 (7th Cir. 2011).
In the course of his discussion, Judge Posner made the following general observations about Iqbal:
The Court explained in Iqbal that “the plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” This is a little unclear because plausibility, probability, and possibility overlap. Probability runs the gamut from a zero likelihood to a certainty. What is impossible has a zero likelihood of occurring and what is plausible has a moderately high likelihood of recurring. But one sees more or less what the Court was driving at: the fact that the allegations undergirding a plaintiff’s claim could be true is no longer enough to save it. … [T]he complaint taken as a whole must establish a nonnegligible probability that the claim is valid, though it need not be so great a probability as such terms as “preponderance of the evidence” connote.
1. The First Circuit’s decision in Ocasio-Hernandez demonstrates that a federal court’s familiarity with the extent of political discrimination in a particular jurisdiction may make it easier to find that such a pleading is plausible even if somewhat lacking in particulars.
2. Judge Posner in Atkins appears to define plausibility as “a nonnegligible probability that the claim is valid.”