Legal Commentary

Continuing on my discussion of the death of notice pleading in Ashcroft v. Iqbal:

The Court makes the distinction between conclusory and non-conclusory facts central to pleading analysis, with the former not "counting" in evaluating the sufficiency of the complaint. As Scott Dodson argues here, it is problematic that the Court has reintroduced two tiers of facts (conclusory v. non-conclusory), a remnant of fact pleading (which distinguished between evidentiary and ultimate facts).

But a bigger problem is how anyone can plead defendant's state of mind anymore without avoiding such conclusory facts. This will be an issue in this case and beyond. In this case, the Supreme Court remanded to the Second Circuit to consider whether to remand to the district court to give the plaintiff a chance to replead. But what more could he say?

The majority rejected as conclusory, bare allegations that are not entitled to be taken as true for purposes of the 12(b)(6) the following allegations: 1) that Ashcroft and Mueller "'knew of, condoned, and willfully and maliciously agreed to subject [him]' to harsh conditions of confinement 'as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.'?; 2) that Ashcroft was the "principal architect" of the discriminatory detention policy; and 3) that Mueller was "instrumental" in adopting and executing that policy.

As Justice Souter argued, it is not clear why these are conclusory or bare allegations (at least considered in light of the other allegations in the complaint). Nor is it clear why these were mere conclusions to be ignored while the following paragraphs were sufficient: 1) "'the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11.'?; and 2) "'[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ?cleared? by the FBI was approved by Defendants ASHCROFT and MUELLER after September 11, 2001.'? Can anyone find a principled way to determine why these are any less bare than the three paragraphs quoted above?

More problematically, even accepting the majority's determination that the allegations are indeed bare and conclusory, what else could the plaintiff say at the complaint stage? How else could a plaintiff allege that two government officials had implemented and carried out a policy with impermissible discriminatory intent? Absent some discovery and the chance to inquire into the defendants' thinking when acting (here, in establishing the policies at issue), what words can a plaintiff possibly use to describe that the defendant enacted or approved or acquiesced in a policy knowing (or intending) it to be discriminatory?

This seems to leave plaintiffs in an impossible position.