“While unquestionably important, the Supreme Court’s decisions in Twombly and Iqbal were hardly bolts from the blue,” said former U.S. Solicitor General Gregory Garre in testimony before the Senate Judiciary Committee earlier this month. “To the contrary, they 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.”
An antitrust case, Twombly involved “a putative class action brought by consumers against major telecommunications providers alleging that the providers had conspired to restrain trade in violation of Section 1 of the Sherman Act by engaging in parallel conduct intended to prevent the growth of upstart providers and by agreeing to refrain from competing against one another,” Garre explained. “By a 7-2 vote, the Supreme Court – in an opinion written by Justice Souter -- held that the complaint failed to state a claim upon which relief could be granted.”
A national security case, Iqbal involved "a constitutional tort action brought by a Pakistani, Iqbal, who was arrested in New York in the wake of the September 11 attacks on criminal charges to which he pleaded guilty and held in a special federal detention facility after he was determined by the FBI to be ‘of high interest’ to the investigation into the September 11 attacks. After Iqbal was cleared of involvement in the attacks and had returned to his country of origin, he brought suit against 34 current and former federal officials ranging from the prison guards with whom he had day-to-day contact all the way up the chain to the Director of the FBI and the Attorney General of the United States, alleging that he was discriminated against on the basis of race, religion, and national origin," recalled Garre, who argued the case before the Supreme Court on behalf of former Attorney General John Ashcroft and FBI Director Robert Mueller. "The only question before the Supreme Court,” Garre emphasized, “was whether Iqbal had adequately pleaded claims against former Attorney General Ashcroft and Director Mueller, who asserted qualified immunity from suit.”
Twombly and Iqbal “clarify the gateway standards for pleading an adequate claim under the Federal Rules of Civil Procedure,” Garre affirmed. “The Supreme Court has on a number of prior occasions emphasized that, while the notice-pleading regime established by the Federal Rules of Civil Procedure is generous, it is not without limit. The Court has been particularly sensitive to ensuring that the pleading requirements are met before discovery is allowed in complex civil actions where proceeding beyond the Rule 12(b)(6) stage can have enormous practical and financial consequences for litigants given the burdens typically imposed by the discovery process in such cases.”
According to Garre, the Twombly and Iqbal decisions “fit comfortably within that deeply-rooted body of precedent and represent a natural application of existing law. To be sure, the cases clarified the applicable pleading standards under the Federal Rules of Civil Procedure and provide important guidance to the lower courts in evaluating the sufficiency of pleadings. But they represent a natural outgrowth of decades’ worth of settled pleading law.”
Garre concluded that “the Twombly and Iqbal decisions are unquestionably important and in line with decades’ worth of precedent at both the Supreme Court and appellate level. It is too soon to say what impact they will have on civil litigation in the federal courts,” he conceded, “but they have yet to lead to the wholesale dismissal of claims and are more likely to have an effect on a case-by-case basis. Any legislative effort to override these decisions at this time would be precipitous and unwise,” Garre warned. “The sounder course is to permit the Judicial Conference of the United States to continue to monitor the situation and respond if need be through the time-honored judicial rulemaking process established by Congress.”
