Monday, March 15, 2010

Is Swierkiewicz Still Good Law After Iqbal?

SCOTUSblog reports on in its petitions to watch, on the petition for cert. in Townes v. Jarvis (Docket No. 09-729) in which petitioner Townes presents the question whether Swierkiewicz is any longer the law of the land after last term’s divided opinion in Iqbal. Townes arises from the 4th Circuit, 577 F.3d 543 (4th Cir. 2009), an opinion written by Judge Diana Gribbon Motz for herself and Judge Gregory, an opinion from which Judge Shedd dissented. Townes is a habeas petition which alleges intentional discrimination, and the majority of the 4th Circuit’s panel held that he had failed to allege facts sufficient to satisfy the element of intentional discrimination.

Before the Supreme Court, in Mr. Townes’ petition in which he is represented by Arnold & Porter, he asserts that there is a “deep and mature Circuit split on the pleadings standard applicable to intentional discrimination claims.” He notes that, in dicta, the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), reaffirmed Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), stating that “Swierkiewicz did not change the law of pleading, but simply re-emphasized… that the Second Circuit’s use of a heightened pleading standard for Title VII cases was contrary to the Federal Rules’ structure of liberal pleading requirements.” Townes further notes that the Supreme Court, within days after Twombly, in Erickson stated that pro se plaintiff need not allege “[s]pecific facts” and “need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.’” Then, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Court, making no reference to Swierkiewicz, outlined a “two-pronged” approach under which, first, a court could identify “pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth”, and, second, “[w]hen there are well-pleaded factual allegations, the court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” 129 S. Ct. 1937, 1950 (2009). Thereafter, Mr. Townes contends that the Circuits have diverged as to whether Swierkiewicz remains good law citing Jordan v. Alternative Resources Corp., 458 F.3d 332, 346 (4th Cir. 2006) as well as Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3rd Cir. 2009), both of which reject Swierkiewicz. Mr. Townes contrasted those holdings with holdings in the Second, Sixth, Seventh and District of Columbia Circuits which continue to apply Swierkiewicz in intentional discrimination cases. See Boykin v. KeyCorp, 521 F.3d 202, 212-16 (2d Cir. 2008) (applying Swierkiewicz and holding that complaint sufficiently stated a claim where plaintiff simply alleged that denial of loan was based on her race and sex); Ruffin v. Nicely, 183 E App’x 505, 513 (6th Cir. May 18, 2006) (holding that plaintiff sufficiently stated race-discrimination claim by alleging that he was an African-American man who applied for, but was not selected to receive, a state contract because he "may be able to uncover direct or indirect evidence of racial animus"); Lindsay v. Yates, 498 F.3d 434, 440 n.6 (6th Cir. 2007) (finding "no basis for concluding that Swierkiewicz is no longer good law" after Twombly "[b]ecause the Supreme Court majority [in] distinguished Swierkiewicz and nowhere expressed an intent to overturn it"); Tamayo v. Blagojevich, 526 F.3d 1074, 1085 (7th Cir. 2008) (reversing district court’s dismissal of Title VII complaint alleging that female plaintiff was paid less than similarly-situated males on account of her sex because the allegations "certainly provide[d] the defendants with sufficient notice to begin to investigate and defend against her claim"); Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) (noting that "[re]any courts have disagreed about the import of Twombly" and holding that Twombly "leaves the long-standing fundamentals of notice pleading intact"); see also Al-Kidd v. Ashcroft, 580 F.3d 949, 974 (9th Cir. 2009) (concluding that the Twombly Court "reaffirmed the holding of Swierkiewicz" and "expressly disclaimed any intention to require general ’heightened fact pleading of specifics’ " (quoting Twombly, 550 U.S. at 570)).

Reversing an 8-year old decision sure raises serious question regarding the Court’s adherence to stare decisis.


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