Concept
Iqbal's Two-Step Approach
Sufficiency of the pleading
Iqbal's Two-Step Approach
Ashcroft v. Iqbal, 556 U.S. 662 (2009), took the plausibility reading of Rule 8(a)(2) out of antitrust law and turned it into a procedure any court can follow on a motion to dismiss.1 Rule 8(a)(2) asks for a “short and plain statement of the claim showing that the pleader is entitled to relief.” It does not require “detailed factual allegations,” but it demands more than “an unadorned, the-defendant-unlawfully-harmed-me accusation,” and “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.”2 The occasion for the method was a constitutional claim against two of the highest officials in the federal government, a long way from the telephone carriers of Twombly.
Javaid Iqbal, a Pakistani Muslim, was arrested on criminal charges after the September 11, 2001 attacks and held in the maximum-security unit of the Metropolitan Detention Center in Brooklyn. He brought a Bivens action, a constitutional claim against federal officers, and named among the defendants former Attorney General John Ashcroft and FBI Director Robert Mueller. His claim was that they knew of and condoned discriminatory treatment of Arab and Muslim men in federal custody, in violation of his First and Fifth Amendment rights.3 The complaint alleged that the FBI, under Mueller’s direction, “arrested and detained thousands of Arab Muslim men” in its September 11 investigation. It alleged that Ashcroft and Mueller approved a policy of holding post-September-11 detainees in “highly restrictive conditions of confinement” until the FBI “cleared” them. And it alleged that the two “each knew of, condoned, and willfully and maliciously agreed to subject” Iqbal to harsh confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.”4
Ashcroft and Mueller moved to dismiss, arguing that the complaint did not allege facts showing their own involvement in clearly established unconstitutional conduct. The district court denied the motion. Accepting the allegations as true, it reasoned that it could not say there was no set of facts on which Iqbal would be entitled to relief, which is the Conley formulation that Twombly retired.5 The Second Circuit affirmed. It read Twombly to call for a “flexible plausibility standard” that obliges a pleader to amplify a claim with factual allegations only “in those contexts where such amplification is needed to render the claim plausible,” and it found that this appeal presented no such context.6 The Supreme Court held the complaint insufficient as to the two officials.7
The Court built that holding on two working principles drawn from Twombly. First, the rule that a court accepts a complaint’s allegations as true does not reach legal conclusions: “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”8 Second, only a complaint that states a plausible claim for relief survives a motion to dismiss, and judging plausibility is a context-specific task that draws on the court’s judicial experience and common sense.9 Together the principles dictate a sequence. A court can begin by identifying the allegations that are no more than conclusions, because those are not entitled to the assumption of truth. It then assumes the veracity of the well-pleaded facts that remain and asks whether they plausibly give rise to an entitlement to relief.10 The order is logical, since a judge cannot test what facts suggest until the facts have been separated from the labels wrapped around them.
Step One: Disregard Conclusions
In Ashcroft v. Iqbal the Court told lower courts where to start on a motion to dismiss: identify the allegations that are no more than conclusions, because they are not entitled to the assumption of truth.11 The instruction narrows an old courtesy. On a motion under Rule 12(b)(6) a court proceeds on the assumption that the complaint’s allegations are true, even if doubtful in fact.12 That courtesy stops at legal conclusions, and “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”13 A complaint may contain legal conclusions, which can supply its framework, but each one must be supported by factual allegations.14 Step one is therefore a sorting task. The judge separates what the complaint says happened from what the complaint says the law makes of those events, and only the first pile goes forward to be assumed true.
The line falls where it does because of what the assumption of truth is for. A factual allegation reports an event, and later stages of the case can confirm or refute the event with evidence. A conclusion reports no event. It asserts that the legal elements are met, which is the very point the facts are supposed to establish, so a court that assumed it true would leave nothing to test. Twombly shows the stakes: had the Court simply credited the allegation of a conspiracy, the plaintiffs would have stated a claim and been entitled to proceed automatically.15 Rule 8 remains a generous departure from the hypertechnical code pleading of an earlier era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.16
Twombly supplies the template. The plaintiffs there alleged a “contract, combination or conspiracy to prevent competitive entry.”17 The Court first treated that assertion of an unlawful agreement as a legal conclusion not entitled to the assumption of truth. Only then did it turn to the “nub” of the complaint, the well-pleaded, nonconclusory allegation of parallel behavior, to see whether it gave rise to a “plausible suggestion of conspiracy.”18 The word “agreement” was a threadbare recital of an element of the antitrust claim, and the plaintiffs had to supply facts consistent with an agreement.19 The conclusion came out first, and what remained was tested for what it showed. That second operation is step two.
Iqbal’s complaint received the same treatment. It pleaded 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.” It also called Ashcroft the “principal architect” of the policy and Mueller “instrumental” in adopting and executing it.20 Each phrase restates an element of the discrimination claim, which requires that the officials themselves acted on account of a protected characteristic.21 The labels “architect” and “instrumental” describe a role but report no decision, instruction, or statement showing what either official did. The Court called the allegations conclusory and withheld the assumption of truth, just as it had withheld it from the pleaded conspiracy in Twombly.22 Step one did not end the case, though. Two factual allegations remained, and the next part takes them up.
Students most often miss the ground of rejection. The Court said it was not rejecting the allegations as unrealistic or nonsensical, any more than the Twombly Court had rejected the express allegation of a conspiracy because it thought the claim too chimerical to be maintained. “It is the conclusory nature of respondent’s allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”23 Step one tests the form of an allegation and not its believability. The two rules fit together: a court credits well-pleaded facts even when it doubts them, and it withholds credit from conclusions even when they sound entirely reasonable.
Courts apply the same sorting well outside civil-rights cases. In Huon v. Breaking Media LLC. the court accepted the plaintiff’s factual allegations as true while denying that presumption to conclusory allegations that merely restate the elements of a cause of action.24 In Omnicare, Inc. v. Laborers District Council Construction Industry Pension Fund, an investor who claimed that an issuer’s opinion statement was misleading by omission could not plead the omission through conclusory assertions. The investor had to identify particular and material facts about the issuer’s basis for the opinion, such as the inquiry the issuer did or did not conduct or the knowledge it did or did not have.25 A complaint that says only that the issuer failed to reveal its basis is the securities version of Iqbal’s labels, while one that says what the issuer knew or failed to investigate supplies a fact.
A workable test asks whether a sentence does anything beyond repeating an element in the law’s own vocabulary. Williams v. Dart marks the other side of the line. The plaintiffs there alleged that a sheriff targeted them for pretrial detention on the basis of “racist assumptions about the likelihood that people from primarily African American neighborhoods pose a public safety risk or are likely to reoffend.” The Seventh Circuit held the allegation was not conclusory, because no cause of action has proof of racist assumptions about neighborhoods in Chicago as an element, so the allegation could not fairly be called a restatement of one.26
Facts of that kind are hard to plead because they usually sit in the defendant’s exclusive control and surface first in discovery, after the complaint is filed, so the plaintiff must plead them before any means of learning them exists.27 That tension returns later in this chapter, in the treatment of conditions of mind and of facts within the defendant’s control.
The edges of the conclusory category are less settled than its existence. The Iqbal dissent objected that the majority discarded the allegations about Ashcroft and Mueller as conclusory and was left considering only two statements.28 A careful analysis therefore names the element each allegation corresponds to and asks whether the sentence reports anything beyond it. Detail does not rescue a conclusion, and a conclusion does not taint the facts around it. A plaintiff who narrates events at length and closes by asserting that the conduct violated some legal rule keeps the narrative, which goes forward to step two, and loses only the closing assertion.29
Step Two: Weigh Plausibility
Once the conclusions are out, Iqbal tells the court to assume the veracity of the well-pleaded facts and then to determine whether they plausibly give rise to an entitlement to relief.32 The sentence describes two acts of different kinds. Assuming veracity continues the usual courtesy, because the judge has no evidence with which to question the pleaded events. Determining plausibility is a separate judgment about what those events suggest, and a complaint that cleared step one can still fail here. To survive a motion under Rule 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.33 The standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.34
The phrase that does the work is “merely consistent with.” Where a complaint pleads facts that are merely consistent with a defendant’s liability, it “stops short of the line between possibility and plausibility of entitlement to relief.”35 The reason lies in what facts can tell a judge who has only the complaint. Facts that fit liability and innocent conduct equally well cannot show which occurred. Letting such a case proceed would rest on a hope that discovery will supply the missing fact, and nothing in the complaint would justify the hope. A plaintiff in that position owes more factual content, enough to “nudge” the claim “across the line from conceivable to plausible.”36
Because the question is what facts suggest, a court cannot judge a complaint in a vacuum. Iqbal calls the task context-specific and says it requires the reviewing court to draw on its judicial experience and common sense.37 The claim is part of the context, since its elements determine which facts matter. As one court of appeals put it in Franza v. Royal Caribbean Cruises, Ltd., it is sufficient if the complaint identifies facts suggestive enough to render each required element plausible.38 The competing explanation is the other part of the context, and Iqbal itself shows how the comparison runs.
Two factual allegations survived step one. The FBI, under Mueller’s direction, arrested and detained thousands of Arab Muslim men as part of its September 11 investigation, and the policy of holding post-September-11 detainees in highly restrictive conditions until the FBI “cleared” them was approved by Ashcroft and Mueller in discussions in the weeks afterward.39 Taken as true, the Court said, those facts are consistent with the officials purposefully designating detainees “of high interest” because of race, religion, or national origin, but given more likely explanations they do not plausibly establish that purpose.40 The more likely explanation was close at hand. A legitimate policy of arresting and detaining people because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims even though the policy targeted neither Arabs nor Muslims.41 As between that “obvious alternative explanation” and the purposeful, invidious discrimination Iqbal asked the Court to infer, discrimination was not a plausible conclusion.42 The allegations about the confinement policy fared no better. Accepting their truth, the complaint did not show or even intimate a discriminatory purpose. It plausibly suggested only that the Nation’s top law enforcement officers, after a devastating terrorist attack, sought to keep suspected terrorists in the most secure conditions available until they could be cleared.43
Nothing in that reasoning involved disbelief. The Court credited that thousands of men were arrested and that the officials approved the restrictive policy, and then asked which inference those facts supported better. A lawful explanation that fits every pleaded fact, and that common sense finds the more natural, leaves the unlawful explanation resting on speculation. That is also why step two compares explanations and forecasts nothing. It asks whether the pleaded facts point toward liability or toward lawful conduct, a question the court can answer from the complaint, and it leaves the question of who will probably win to stages that have evidence.
An alternative explanation that can merely be imagined does not defeat every complaint. In re Office of Personnel Management Data Security Litigation, the plaintiffs claimed that data breaches exposed them to a substantial future risk of identity theft and financial fraud, and the defendants pointed to a likely espionage motive.44 The D.C. Circuit majority gave three reasons for rejecting that argument at the pleading stage. The district court should not have relied on its own surmise that the Chinese government perpetrated the attacks, because absent factual allegations about the attackers’ identity it was not free to research outside the record and draw inferences in the defendants’ favor. In the cases the dissent cited, the obvious alternative explanations were necessarily incompatible with the plaintiffs’ versions of events. And since espionage and identity theft are not mutually exclusive, the likely existence of an espionage motive hardly renders the identity-theft theory implausible.45 The dissent saw the same facts as Iqbal over again: the espionage motive was, in the words of Iqbal and Twombly, an “obvious alternative explanation” that the plaintiffs, to survive a motion to dismiss, had to deflect.46 The judges thus disagreed about how much work an alternative explanation does. For the majority, an alternative defeats plausibility when it cannot coexist with the plaintiffs’ account.
The comparison can also favor the plaintiff. In Arar v. Ashcroft, a dissenting opinion argued that, unlike in Iqbal, the implausible account was the alternative. To think that low-level agents had complete discretion over the conditions for holding a suspected member of al Qaeda defies common sense, and it requires believing that high-level officials who arranged the detainee’s removal to Syria were oblivious to the particulars of his detention.47 The dissent added that a court must credit all reasonable inferences from the complaint, on the assumption that the allegations are true even if doubtful in fact, with their factual basis to be tested in discovery.48
The reliance on judicial experience and common sense is where this step draws its sharpest objection. Comparing innocent and guilty explanations depends on a judge’s background knowledge and assumptions, which are as open to the influence of cultural predispositions as any other judgment, so the same facts can strike one judge as pointing toward discrimination and another as pointing away.49 A civil rights litigator described the practical result: judges are asked to fill in information gaps from their own experience, and “one view may be that judges perceive less discrimination than I do.”50 The Arar dissent made a similar charge against Iqbal itself, saying that the majority, “[a]pparently having their own views about the defendants’ state of mind,” simply found the discrimination claim incredible.51 A second objection is the timing problem noted under step one. The facts that would tip the comparison, facts about a defendant’s state of mind, are typically in the defendant’s exclusive control and found first in discovery, not available before.52
On an exam, the comparison reduces to two questions about the facts that survive step one. The first asks whether a lawful explanation fits those facts at least as naturally as the one the plaintiff proposes. The second asks whether that lawful explanation can coexist with the plaintiff’s theory. An espionage motive can sit beside an identity-theft motive and leave the theory standing. An explanation that competes with the theory, as a legitimate post-attack investigation competed with purposeful discrimination in Iqbal, requires the plaintiff to plead something more.
Applying the Steps to Iqbal’s Complaint
Run through both steps, Iqbal’s complaint shows why the result turned on who the defendants were and on the one element the claim required of them. The Court set aside the allegations that were no more than conclusions, assumed the truth of the facts that remained, and asked whether those facts plausibly suggested the unlawful purpose on which the claim depends.54
The route to the Court explains why it examined the pleading so closely. Petitioners moved to dismiss for failure to allege facts showing their own involvement in clearly established unconstitutional conduct, and the district court denied the motion.55 Because the order denied qualified immunity, it was immediately appealable, and the Court held that it could also address the sufficiency of the pleading.56 The pleading mattered to the defense. The Court said it was “impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties,” and a complaint deficient under Rule 8 earns the plaintiff no discovery, “cabined or otherwise.”57
The element that controlled came from the structure of the claim. Federal law creates no respondeat superior liability of superiors for the acts of their subordinates.58 Iqbal therefore needed to allege that Ashcroft and Mueller were somehow directly responsible for his detention and conditions of confinement.59 For a discrimination claim, that meant facts showing that petitioners themselves acted on account of a constitutionally protected characteristic.60 The corporate defendants in Twombly stood differently, because respondeat superior could bind a corporation for its agents’ conduct, whereas Ashcroft and Mueller could be reached only through what they themselves intended.61 Arrests carried out by the FBI could not carry the case alone. The claim needed facts about the minds of two men at the top, and a detention policy with a disparate effect looks the same from outside whether prejudice or something else produced it.
The walk through the complaint can be short, because the pieces appear above. The statements about purpose, including the labels “principal architect” and “instrumental,” spoke to the officials’ state of mind most directly, and they dropped out at step one as conclusory.62 What remained, the arrests and the approval of restrictive conditions until clearance, was consistent with discrimination but fit a more likely lawful explanation.63 The Court then fixed the target of the theory. To prevail, the complaint had to contain facts plausibly showing that petitioners purposefully adopted a policy of classifying post-September-11 detainees as “of high interest” because of their race, religion, or national origin.64 Allegations that other defendants, who were not before the Court, may have labeled Iqbal “of high interest” for impermissible reasons did not fill the gap, because the only factual allegation against petitioners was that they approved restrictive conditions until the FBI cleared the detainees.65 The Court acknowledged distinctions between Iqbal’s pleading and Twombly’s, and it conceded that the allegations, if true and if condoned by petitioners, could support some inference of wrongful intent. It still held the pleading insufficient, because the complaint contained no factual allegation plausibly suggesting petitioners’ own discriminatory state of mind.66
The Court then fenced in its holding. It decided only that the complaint does not entitle Iqbal to relief from petitioners. It expressed no opinion on the sufficiency of the complaint against defendants not before it, and it noted that his account of his confinement alleges serious official misconduct it need not address.67 A student who reports that Iqbal rejected the detainee’s claims wholesale, or that supervisors can never be sued for discrimination, has stretched a ruling about two defendants and one element into a rule about everyone.
Justice Souter’s dissent did not quarrel with the majority’s account of plausibility under Twombly. His objection was to the first step: the majority discarded the allegations about Ashcroft and Mueller as conclusory and was left with only two statements. He agreed that those two statements, the arrests under Mueller’s direction and the approval of restrictive conditions until clearance, suggest only that the officials sought to keep suspected terrorists in the most secure conditions available.68 The dispute was therefore over what counted as a conclusion, and that marks the contested edge of the category discussed under step one. Justice Breyer wrote separately to stress that trial courts have other legal weapons. Where a government defendant asserts qualified immunity, a court that is “mindful of the need to vindicate the purpose of the qualified immunity defense” can structure discovery to diminish the risk of unwarranted burdens on public officials.69 The next part returns to the majority’s answer to that reassurance. On an exam the majority’s treatment is the law, and the dissent supplies the argument for reading a sentence that sounds conclusory with an eye to what the complaint pleads around it.
Reach of the Standard
Iqbal settled whether the plausibility reading of Rule 8(a)(2) belongs to antitrust law alone. Twombly determined the sufficiency of an antitrust complaint, but its decision rested on the Court’s interpretation and application of Rule 8, and Rule 1 makes the Rules govern procedure “in all civil actions and proceedings in the United States district courts.” Twombly therefore expounded the pleading standard for “all civil actions,” and it applies to antitrust and discrimination suits alike.73 Iqbal was itself the demonstration, since the Court tested a constitutional claim against federal officials with a reading it had announced two years earlier for a conspiracy claim.
The reasoning is textual. Rule 8(a)(2) is a single sentence addressed to every plaintiff, so a court that read its words to demand facts suggesting liability in an antitrust complaint would need some basis in the Rules to read the same words more gently in a civil-rights or contract case. The Rules adjust by subject only where their text does so, as Rule 9(b) does for fraud and mistake by requiring that the circumstances be stated with particularity.74 The claim being asserted determines which facts matter, because elements differ from one cause of action to the next, but the yardstick for sufficiency stays constant. That is why the same two moves, setting aside conclusions and then asking whether the remaining facts make liability plausible, appear in opinions on every kind of civil claim.
The applications spread widely. Agency complaints raise the same question of detail: in FTC v. D-Link Systems, a Northern District of California court analyzed the sufficiency of the FTC’s complaint against a router and camera maker, which pleaded counts for failure to take reasonable steps to secure router and camera software and for misrepresentations about the security of the products.75 Title VII complaints show how much room remains in the standard. The lower courts have had considerable difficulty implementing it in those cases. Some insist that plaintiffs need allege no more than the ultimate elements, others seem to require facts that would establish a prima facie case, and a leading Second Circuit decision takes a middle course, requiring facts that “give plausible support to a minimal inference of discriminatory motivation.”76 Conclusory misrepresentation claims fare no better. A federal court dismissed a bare claim of strict liability for misrepresentation under Restatement (Second) of Torts § 402B, a ruling the commentary uses to show that the heightened pleading requirement reaches misrepresentation torts other than fraud, a subject the next part develops.77
Counterclaims receive the same treatment. In Rocheux International of N.J., Inc. v. U.S. Merchants Financial Group, the pleadings showed a dispute over goods delivered in 2006. The defendants later sought offsets for nonconforming goods delivered between 2000 and 2005, and they argued that their generic affirmative defenses already covered that period. The court observed that the plausibility standard of Rule 8(a) applies to counterclaims, and it concluded that the generic defenses did not expand the temporal scope of the claims, because the pleadings alleged no nonconformities before the 2006 deliveries.78 The attempted modification was properly a motion to amend the answer to add new counterclaims. A party who pleads a claim for relief, whether as plaintiff or as counterclaimant, must supply facts that make the claim plausible.
Affirmative defenses work differently. An affirmative defense descends from the common law plea of confession and avoidance, and it excuses liability on the basis of facts outside the complaint; Rule 8(c) lists illustrative examples.79 Iqbal addressed a complaint, so whether the same screen applies to defenses is a separate question. Flag it in an answer and do not assume a result.
The majority also answered the reassurance that discovery could be kept narrow. The court of appeals had promised petitioners minimally intrusive discovery, and the respondent urged the Court to relax the pleading requirements on that ground. The Court declined and called the promise “especially cold comfort” in a setting where qualified immunity for high-level officials must be given real content. A complaint deficient under Rule 8 earns the plaintiff no discovery, “cabined or otherwise.”80 The pleading standard decides whether discovery begins at all. A standard that bent whenever a judge promised careful supervision would make the gate a suggestion, and the defendant would bear the cost of supervised discovery before learning whether the claim has any factual footing.
A third holding concerns Rule 9(b), which lets malice, intent, knowledge, and other conditions of a person’s mind be alleged generally.81 Iqbal’s complaint alleged discriminatory intent in general terms, and the Court held that Rule 9 does not save it. The Rule “merely excuses a party from pleading discriminatory intent under an elevated pleading standard,” and it “does not give him license to evade the less rigid—though still operative—strictures of Rule 8.”82 The practical result is that a plaintiff may not need to plead state of mind with particularity, but even general pleading must be well pleaded, meaning not entirely conclusory, as well as plausible.83 Later parts of this chapter develop conditions of mind in full.
These holdings describe federal practice. How a party pleads depends on the rules of the court in which the case is filed,84 so a state court applies its own pleading rules, and the Rule 8 reading governs the federal district courts that Rule 1 covers.85