Does Skinner v. Switzer tell us anything about Iqbal/Twombley and pleading standards?

March 11th, 2011

It may, says Howard Wasserman at PrawfsSkinner v. Switzer has this paragraph where Justice Ginsburg writes about pleading standards, as this case arose from the granting of a 12(b)(6) motion:

Because this case was resolved on a motion to dismiss for failure to state a claim, the question below was “not whether [Skinner] will ultimately prevail” on his procedural due process claim, see Scheuer v. Rhodes 416 U. S. 232236 (1974) , but whether his complaint was sufficient to cross the federal court’s threshold, see Swierkiewicz v.Sorema N. A. 534 U. S. 506514 (2002) . Skinner’s complaint is not a model of the careful drafter’s art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible “short and plain” statement of the plaintiff’s claim, not an exposition of his legal argument. See 5 C. Wright & A. Miller, Federal Practice & Procedure §1219, pp. 277–278 (3d ed. 2004 and Supp. 2010).

Skinner stated his due process claim in a paragraph alleging that the State’s refusal “to release the biological evidence for testing … has deprived [him] of his liberty interests in utilizing state procedures to obtain reversal of his conviction and/or to obtain a pardon or reduction of his sentence … .” Complaint ¶33, App. 20–21. As earlier recounted, see supra , at 5–6, Skinner had twice requested and failed to obtain DNA testing under the only state-law procedure then available to him. See Complaint ¶¶22–31, App. 14–20. 7 At oral argument in this Court, Skinner’s counsel clarified the gist of Skinner’s due process claim: He does not challenge the prosecutor’s conduct or the decisions reached by the CCA in applying Article 64 to his motions; instead, he challenges, as denying him procedural due process, Texas’ postconviction DNA statute “as construed” by the Texas courts. Tr. of Oral Arg. 56. See also id. , at 52 (Texas courts, Skinner’s counsel argued, have “construed the statute to completely foreclose any prisoner who could have sought DNA testing prior to trial[,] but did not[,] from seeking testing” postconviction). 8

Wasserman finds 3 things interesting about this passage–most interesting is they cited Swierkiewicz, a pre-Twiqbal case, and did not cite Twombly or Iqbal.

Second, the Court cited Swierkiewicz, a pre-Twiqbal case that actually cited Conley and rejected a requirement of factual detail in an employment-discrimination complaint. This clarifies a point that had been somewhat unclear and had been something of a contentious point among scholars–Swierkiwicz remains good law and Twiqbal must be read in light of Swierkiwicz to form a consistent whole. Adam is one of the leading proponents of that point.

Third, the Court did not cite Twombly or Iqbal. What does that mean? Perhaps that those cases really do most of their work in certain types of cases, such as discovery-intensive/expensive cases (Skinner will not be particularly discovery-intensive). Or perhaps Twiqbal works best where the challenge is to factual sufficiency–the amount of detail in the complaint–rather than legal sufficiency. I actually think this could have some force, particuarly if (as Emily Sherwin argues)Conley itself was really about legal sufficiency. Or (although this is a longshot) perhaps it is Justice Ginsburg’s way of trying to walk back Twiqbal a little bit, but in a quiet way where the pleading standard and pleading details were not at the heart of the case

Very interesting. I wonder if this was a hidden bomb of sorts planted by Justice Ginsburg, who dissented in Iqbal.