Private: Salvaging Civil Rights Claims

By Suzette M. Malveaux, an associate professor of law at Catholic University's Columbus School of Law. The following is a modified version of the introduction to Malveaux's ACS Issue Brief, "Salvaging Civil Rights Claims: How Plausibility Discovery Can Help Restore Federal Court Access After Twombly and Iqbal," which was released today. The Issue Brief will be a topic of discussion during the National Civil Rights Access to Justice Forum, which will begin at Emory University School of Law in Atlanta tomorrow evening and continue Friday, Nov. 12. Click here for more information about the event and to register.

For over half a century, federal courts have opened their doors to all plaintiffs who could craft a complaint that provided basic notice to the defendant of their claims. This threshold, called "notice pleading," was established by the Supreme Court in Conley v. Gibson - a civil rights case brought by African-American railway workers challenging their union for failing to fairly represent their interests without regard to race. This seminal case established the rule that a complaint should only be dismissed if the plaintiff could prove "no set of facts in support of his claim that would entitle him to relief." This made it easy for a plaintiff to initiate a lawsuit because the system was designed to test the merits of the plaintiff's case later on, once both sides had the chance to collect evidence through the discovery process and to use other pre-trial procedures. It was important not to let procedural gamesmanship bar ordinary people from seeking justice and relief through the courts.

Anchored in these principles, the Supreme Court consistently rejected efforts by the lower courts to raise the pleading standard, particularly in civil rights cases. The Court remained steadfast in enforcing Conley's "no set of facts" standard, only requiring plaintiffs to set forth a "short and plain statement of the claim" that would give the defendant notice, as stated in Rule 8 of the Federal Rules of Civil Procedure. It was important to give civil rights complainants, like everyone else, their day in court and let their cases be decided on the merits.

After over half a century, however, this generous pleading standard upon which courts had historically relied has come to an abrupt halt. In Bell Atlantic Corp. v. Twombly (an antitrust class action by consumers against Internet and telephone service providers), the Supreme Court "retired" Conley's permissive "no set of facts" language. Instead of requiring plaintiffs to put forth facts showing their claims were possible, they now had to put forth facts showing their claims were plausible. In Ashcroft v. Iqbal (a constitutional civil rights case by Javaid Iqbal against top government officials), the Court clarified that the new standard applies to all civil actions, including discrimination claims. And the way a judge would determine if something is plausible would be to use his "judicial experience and common sense."

Today, all plaintiffs must clear this higher hurdle to get into federal court. The Federal Rules of Civil Procedure, which govern civil actions in federal court, apply to all cases in the same manner, regardless of the substantive right being pursued. In other words, the rules are supposed to be trans-substantive. But surviving this new bar has proved particularly formidable for civil rights plaintiffs. More than others, civil rights claimants are facing a tougher time getting access to the federal courts. Twombly and Iqbal threaten the viability of their potentially meritorious claims.

In my ACS Issue Brief released today, I describe why civil rights claimants have a more difficult time surviving dismissal under the new pleading standard, and why this is a significant problem. I then explore what can be done about a particularly troubling issue - unequal access to information at the pleading stage. In the absence of a legislative act or Rules amendment - which could be months, if not years away - I suggest that judges permit plaintiffs to discover facts at the beginning of a case to show that their claims are plausible. I analyze the pros and cons of plausibility discovery and provide a roadmap that judges can use to permit such discovery. Finally, I conclude that plausibility discovery is an important tool to consider in the fight for court access and greater civil rights enforcement.

Read the rest of this Issue Brief here.

Access to Justice, Civil rights, Equality and Liberty, Procedural Barriers to Court, Supreme Court