The Supreme Court’s decisions in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly have shaken the traditional understanding of federal pleading. Shortly after the Court’s ruling in Iqbal, then-Senator Arlen Specter proposed the Notice Pleading Restoration Act of 2009 to revert the pleading standard under the Federal Rules of Civil Procedure (FRCP) back to the baseline interpretation articulated by the Court in Conley v. Gibson. Specter, and other backers of the Act, believed that the Court, in deciding Twombly and Iqbal, “effectively ‘end-ran’ the Rules Enabling Act” (REA), improperly bypassing the congressionally mandated process for amending the FRCP.
Twombly and Iqbal have triggered a massive increase in satellite litigation over how to properly evaluate the sufficiency of a federal complaint when considering a 12(b)(6) motion to dismiss under the FRCP. Since the Court decided Iqbal in May 2009, the decision has been cited an astonishing 64,595 times. Specter’s proposed bill, which would have effectively overruled the decision, was supported by trial lawyers and civil rights groups who cited the difficulty victims of discrimination often face in demonstrating a culpable state of mind at the pleading stage. At a House Judiciary Committee hearing in October 2009, witnesses condemned the reinterpreted pleading standard as a mechanism that will block many legitimate lawsuits.
Meanwhile, the Equal Employment Opportunity Commission (the “EEOC” or the “Commission”), a federal agency designated with the responsibility to investigate and enforce charges of employment discrimination under Title VII, has been struggling to process a record-breaking number of charges that came through the agency from 2008 to 2010. During the eight years of the Bush administration, the agency suffered drastic budget cuts and a significant decrease in staffing. Although the Obama administration has pledged to “fully fund and increase staffing,” the EEOC’s backlog of pending charges is at an historic high. Many journalists have attributed the surge in filed discrimination charges to the economic recession; as more people have been laid off, the number of claims filed with the agency has spiked.
Part II.A.1 provides a context to the Court’s Twombly and Iqbal decisions by briefly addressing the historical development of federal notice pleading and the rules concerning a complaint’s sufficiency. Part II.A.2 follows by examining the federal courts’ interpretation of pre-Twombly pleading rules. Part II.A.3 then analyzes the Bell Atlantic Corp. v. Twombly decision and the “plausibility standard” for federal pleadings that it created. Part II.A.4 discusses the standard’s extension and affirmation in Ashcroft v. Iqbal. Part II.A.5 discusses recent empirical research on the impact the new pleading standard has had on the dismissal rate in federal court.
The Comment then changes course to provide an overview of the EEOC’s policies and procedures. Part II.B.1 explains the Commission’s charge processing procedure. Part II.B.2 examines the Commission’s broader policies and administrative goals. Part II.B.3 briefly explores the Commission’s mediation and conciliation process.
After this groundwork has been laid, Part III.A analyzes the implications of Twombly and Iqbal for employment discrimination complaints generally. Part III.B discusses the significance of the Court’s emphasis on judicial efficiency over substantive justice. Part III.C explores the potential ramifications of this emphasis on the EEOC’s litigation and mediation efforts, and suggests that Twombly and Iqbal may have unintended effects on the Commission.