Amicus Curiae Brief — Ziglar v. Turkmen, 137 S. Ct. 292 (2016) (No. 15-1358)

IN THE

Supreme Court of the Anited States

JAMES 1ES W. ZIGLAR, Petitioner,

Uv

AHMER IQBAL ABASSI, ET AL., Respondents.

JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, ET

AL., Petitioners,

v

AHMER IQBAL ABASSI, ET AL. , Respondents.

DENNIS HASTY, ET AL., Fotiélonere,

U.

AHMER IQBAL ABASSI, ET AL., Respondents.

On Writs of Certiorari to the

United States Courts of Appeals

for the Second Circuit

‘AMICUS CURIAE BRIEF OF THE

AMERICAN ASSOCIATION FOR JUSTICE

IN SUPPORT OF RESPONDENTS»

J ulie Bremen Keane

AMERICAN ASSOCIATION

FOR JUSTICE

777 6% St., NW, Ste. 200

Washington, DC 20001

(202) 965-3500

Jeffrey R. White

Counsel of Record

AMERICAN ASSOCIATION

FOR JUSTICE

777 6% St., NW, Ste. 200

Washington, DC 20001

(202) 944-2839

jeffrey. white@justice.org

Attorney for Amicus

Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS .............. abceitiniatincs ichueisusdechniseasee i

py FP fe gb. 5.» —_ RSSERSEER eure oe iil

IDENTITY AND INTEREST OF AMICUS

RNIN Nissicccsecissteieesshsutbiarion taccouimeedinoupsascbepecseenission sets |

SUMMARY OF ARGUMENT ....000..00.......0cccceeccccecceeee I

sa SERINE eT: eS PMR RE Sac ee ee ng Bal op aS 5

I. The Court of Appeals Below Properly

Applied the Iqbal Pleading Standard. ........ “all

II. The Pleading Standards Proposed by

Petitioners Are Not Supported by Jgbai........ 15

A. Iqbal does not require the court to

weigh the likelihood of Plaintiff's

allegations and inferences against

competing inferences favoring

RRR Ti oll CE RY Rl SE 1S

B. The great weight of authority

among the federal courts of

appeals rejects the proposition

that Iqbal requires the court to

choose the most likely inference

from factual pleadings. .............0.000....... .17

Ill. THE PLEADING STANDARD

PROPOSED BY PETITIONERS

VIOLATES THE SEVENTII

RE tne tt Ct OE Sell aes

A. The constitutional right to trial by

jury is of fundamental importance

and this Court has historically

guarded against any interference

TTT: EA

B. The requirement suggested by

Petitioners would interfere with

the jury’s constitutional

factfinding responsibility. ......................25

III reac eee ee ee 31

ill

TABLE OF AUTHORITIES

Cases

Ashcroft v. Iqbal, 556 U.S. 662 (2009).............. passim

Baltimore & Carolina Line v. Redman, 295 U.S.

ETRE ns AR a ait a Mac AL Ne oe ee 30

Beacon Theatres, Inc. v. Westover, 359 U.S. 500

ee SIAR et CAEN lel Bal ip Rn 5 STREP 24

Bell Atlantic Corp. v. Twombly, 550 U.S. 544

| ERSPEESEREEIE Ry Te ea cha or enaer Dee 5, 6, 16

Bell v. Wolfish, 441 U.S. 520 (1979)... 7

Berger vu. National Collegiate Athletic

Association, No. 16-1558, 2016 WL

7051905 (7th Cir. Dec. 5, 2016)...............0...... 17

Bolick v. Northeast Industry Services Corp., No.

16-2463, 2016 WL 6804922 (3d Cir. Nov.

a Aaa TE A a ert tk SIS AD Oe 17

Braden v. Wal-Mart Stores, Inc., 588 F.3d 585

EES IN eR ELAR ie Re = EE ASS ee 20

Chauffeurs, Teamsters and Helpers, Local No.

391 v. Terry, 494 U.S. 558 (1990)................... 24

Dimick v. Schiedt, 293 U.S. 474 (1935)........ 24, 26, 27

Doe v. Cummins, No. 16-3334, 2016 WL

7093996 (6th Cir. Dec. 6, 2016)...................... 17

Evergreen Partnering Group, Inc. v. Pactiv

Corp., 720 F.3d 33 (1st Cir. 2013).................. 18

iv

Feltner v. Columbia Pictures Television, Inc.,

Sr ns ha eebwdnnnene

Fowle v. Alexandria, 24 U.S. (11 Wheat.) 320

hii taettgnteatammana RRC Co) ERENT SSE eRe

Galloway v. United States, 319 U.S. 372 (1943) ___.

Gasoline Products Co. v. Champlin Refining

of es _ ) RR

Gasperini v. Center for Humanities, Inc., 518

en I neeetnnuntan Saas

Gibson v. Hunter, 126 aie Rep. 499 (H.L.

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33

PR itcishinitncdaaiaiiiedcaiiaasencathasrclecaousconmesin mae

Hammond v. Mason & Hamlin Organ Co., 92

Re de ee

Harbourt v. PPE Casino Resorts Maryland,

LLC, 820 F.3d 655 (4th Cir. 2016)...............

Hetzel v. Prince William County, Virginia, 523

ee SI yobs: sxeczensnesvccacublnceealaicmbuasseis

Houck v. Substitute Trustee Services, Inc., 791

Fe ee NE SIE vekivndnceiscicsvecnsnnbebess cies

In re Bill of Lading Transmission & Processing

Systems Patent Litigation, 681 F.3d 1323

I UT a ah Bee oe

in re Insurance Brokerage Antitrust Litigation,

618 F.3d 300 (3d Cir. 2010).........................008

K.B. v. Perez, No. 16-1155, 2016 WL 7030320

Ce ea isaed 17

Leal v. Corpus Christi-Nueces County Public

Health District, 647 Fed. Appx. 514 (5th

I naan di tandiribes namecedionad\ ite cunsandeasoe sacs 17

Lowinger v. Morgan Stanley & Co. LLC, 841

ve Ro SR ee ere a eer 17

Markman v. Westview Instruments, 517 U.S.

a a aa ce) IE cE ae 26

Najas Realty, LLC v. Seekonk Water District,

BBE We 1G CAGE Cr. BCG)... ccccsccccccscccescsess 17

Neitzke v. Williams, 490 U.S. 319 (1989) ................. 16

Parklane Hosiery Co. v. Shore, 439 U.S. 322

(ERE S ARS AUIS 8 ee ele Wate eR 21, 23, 24

Parks v. Hoes, 53 UB. BEB (LBB) ....0.ncccccccsccecccscseceee 29

Parsons v. Bedford, 28 U.S. (3 Pet.) 433 (1830) ....... 23

SD3, LLC v. Black & Decker (U.S.) Inc., 801

ee Me NII: TRIED civcn ssn cvencusdiienscacencansvec 19

Shandong Yinguang Chemical Industry Joint

Stock Co. v. Potter, 607 F.3d 1029 (5th

GE I acocknanteteasthcarsesnceechiibecancuex « sot ce 19

Slocum v. New York Life Insurance Co., 228

RG MII oils bics cascedi dati ceoiitiiaau 26, 27, 31

Speaker v. United States Department of Health

& Human Services Centers for Disease

Control & Prevention, 623 F.3d 1371

fi Eee one SD iaids crsiatiptesabeuan 20

v1

Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011)........... 20

Swanson v. Citibank, N.A., 614 F.3d 400 (7th

oo 5S Saees Aeibes pele. Pb SN Mie PCA TIO ie oR 20

Swierkiewicz v. Sorema N.A., 534 U.S. 506

Sa a ae cv eeduauewrseiinesion 16

Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308 (2007) .............. ena ae aes RM

Thompson v. Utah, 170 U.S. 343 (1898)................... 26

Turkmen vv. Hasty, 789 F.3d 218

I Sh oc Sa sgenecpvesatasianes 11. passim

United States v. Des Moines Navigation &

Railway Co., 142 U.S. 510 (1892)... 28

Villarreal v. R.J. Reynolds Tobacco Co., 839

P.3a O68 (1 ith Cir. BORG) ....................-0.5... me

Watson Carpet & Floor Covering, Inc. v.

Mohawk Industries, Inc., 648 F.3d 452

Le } ) eer pe Riteda: wee Rope 19

Constitutional Provisions

Oe 5, ae

Statutes

Sa a enced wtslcununbieaniepesedincis —

Other Authorities

Declaration of Independence (1776)........................+: 22

Vil

Henderson, Edith Guild, The Background of the

Seventh Amendment, 80 Harv. L. Rev.

I Cs evessivinsrsessiesscamservearmaaba 22, 23, 29

Landsman, Stephan, The Civil Jury In

America: Scenes From an Unappreciated

History, 44 Hastings L.J. 579 (1993)..........

Miller, Arthur R., From Conley to Twombly to

Iqbal: A Double Play on the Federal

Rules of Civil Procedure, 60 Duke L.J. 1

CIDR wi sessecnccnevacudhuanwienieess wer ssn taurine

Oldham, James, The Seventh Amendment

Right to Jury Trial: Late-Eighteenth-

Century Practice Reconsidered, in

Human Rights and Legal History:

Essays in Honour of Brian Simpson

(Katherine O’Donovan & Gerry R. Rubin

eds., 2000).......... wassusantadnelieaee Sears .

Pound, Roscoe, The Development of

Constitutional Guarantees of Liberty

a iiaititniedtecuvenmobein

Scheiner, Alan Howard, Judicial Assessment of

Punitive Damages, and the Politics of

Jury Power, 91 Colum. L. Rev. 142 (1991)

eee eee eee eee eee eee eee eee eee eee ee ee ee ee ee eee ee

Schnapper, Eric, Judges Against Juries—

Appellate Review of Federal Civil Jury

Verdicts, 1989 Wis. L. Rev. 237 (1989).......

Thomas, Suja A., The Seventh Amendment,

Modern Procedure, and the English

Common Law, 82 Wash. U. L.Q. 687

CID aii vn ccenccisyossecesscessersstetetenceneeeeeenenae

...29

ie

vill

Wolfram, Charles W., The Constitutional

History of the Seventh Amendment, 57

Minn. L. Rev. 639 (1973) ............ccccseeceseeee--- 23

Wright, Chrales Alan & Arthur R. Miller, et a/.,

Federal Practice & Procedure (3d ed.

Rules

EN ES

Ee

oo cc ecinsinsorsoccossenccercooe ll

Teens eemmsncnrepsscentocarsov ll

IDENTITY AND INTEREST OF AMICUS

CURIAE

The American Association for Justice (“AAJ”),

formerly the Association of Trial Lawyers of America,

is a voluntary national bar association whose

members primarily represent individual plaintiffs in

civil actions, including personal injury actions,

employee rights cases, and consumer protection

litigation.' An important element of AAJ’s mission 1s

to protect and preserve Americans’ constitutional

right to trial by jury and access to the courts.

AAJ is concerned that Petitioners in this case

seek to impose a heightened standard of pleading

ordinary claims governed by Federal Rule of Civil

Procedure 8(a). AAJ believes that this requirement is

not supported by this Court’s precedents and would

invade the province of the jury in violation of the

Seventh Amendment.

SUMMARY OF ARGUMENT

1. This Court in Ashcroft v. Iqbal, 556 U.S.

662 (2009), held that to survive a motion to dismiss for

failure to state a claim a complaint must set forth

factual content that allows the court to draw the

reasonable inference that the defendant is liable for

1 All parties have consented to the filing of this amicus

curiae brief, and copies of the emails granting consent have

been filed with the Clerk. The undersigned counsel for amicus

curiae affirms, pursuant to Supreme Court Rule 37.6, that no

counsel for a party authored this brief in whole or in part and

no person or entity other than AAJ, its members, and its

counsel contributed monetarily to the preparation or

submission of this brief.

the misconduct alleged. The complaint in this case

satisfies that requirement.

The standard applied by the lower court is

easily discerned from its refusal to dismiss the claim

that Defendants knowingly detained Plaintiffs under

extremely harsh conditions, even though they were

aware that the government had no individualized

suspicion that any of the Plaintiffs had ties to

terrorism. Plaintiffs’ allegations regarding the

conditions of their confinement were specific and

based on firsthand experience. The court below

inferred discriminatory intent on the part of

Petitioners based in large part on Plaintiffs’

allegations that each of the Defendants received

detailed daily reports concerning the investigation of

the individual detainees as well as the central roles

Defendants played in the September 11 investigation.

Where the factual allegations could support two

reasonable explanations Plaintiffs’ complaint would

survive the motion to dismiss. The _ court

acknowledged that discovery may reveal that the

inferences supporting Plaintiffs may be in error and

that Defendants may ultimately be found not liable.

However, on motion to dismiss, Plaintiffs were not

required to prove their allegations, but only to

plausibly plead them.

Petitioners argue to the contrary that where an

explanation of the alleged facts consistent with their

innocence is at least as likely, Plaintiffs’ allegations

founder and must be dismissed as implausible.

2. Petitioners’ proposed pleading standard

is not consistent with Jgbal. Indeed, this Court there

emphasized that plausibility is not a probability

3

requirement. Nor does it require a plaintiff to

demonstrate the merits of his or her case. Its purpose

instead is to give the defendant fair notice of the

nature of the claim and the grounds on which the

claim rests.

It is well settled that a court passing on a

Federal Rule of Civil Procedure 12(b)(6) takes all of

plaintiff's factual allegations as true and draws all

reasonable inferences in plaintiffs favor. Federal

courts have overwhelmingly relied on this principle in

applying the Iqbal plausibility standard. It follows

that there can be more than one plausible explanation

for a given set of facts and that the court is not obliged

to determine which is more plausible or likely than

another. This Court has indicated that a “more likely”

standard would be too stringent a_ pleading

requirement in ordinary cases, and the federal courts

of appeals have broadly found reversible error in

dismissals based on the district court’s view that the

inferences supporting defendants are more likely.

3. Petitioners’ heightened pleading

requirement necessarily involves the court in making

factual assessments in violation of the fact finding role

of the jury. The history of the Seventh Amendment

underscores the fundamental importance of the right

to trial by jury in civil cases. This Court has

historically safeguarded that right. The fact that a

procedural rule will be more efficient for the judicial

system or less onerous for defendants cannot justify

erosion of the parties’ right to insist that the jury

determine the facts of their case.

The Seventh Amendment preserves the right to

a jury trial in suits tned to juries under the English

common law in 1791. It also precludes procedural

4

rules that take such cases away from the jury, except

as permitted by common law rules existing at that

time. A rule that did not exist at that time will

nonetheless be upheld so long as it preserves the

substance of the common law jury trial.

The closest analog to the Rule 12(b)(6) motion

to dismiss is the common-law demurrer to the

pleadings, the only common law procedural rule that

would allow a judge to determine pretrial that a case

should be withheld from the jury. Under the demurrer

to the pleadings, the movant was required to admit

the truth of the factual allegations as well as all

reasonable inferences therefrom and submit to the

judge the purely legal question of whether a cause of

action existed. The common law demurrer to the

evidence similarly admitted all the facts in evidence,

as well as every adverse inference that could be drawn

therefrom, as true. The common law judge was not

called upon to weigh the merits or the likelihood of the

plaintiffs explanation of the facts. Thus, Petitioner's

standard for dismissal was not a rule known to the

common law.

Nor does that proposed standard preserve the

substance of the common law jury trial. This Court

has repeatedly stated that the heart of the right to

trial by jury—and the aim of the Seventh

Amendment—is to preserve the common law

distinction whereby issues of law are decided by the

court and issues of fact are decided by the jury.

Petitioners’ “more likely” standard plainly violates

that vital characteristic of the jury trial.

ARGUMENT

I. The Court of Appeals Below Properly

Applied the Iqbal Pleading Standard.

AAJ addresses this Court with respect to the

third question presented. That question, variously

framed by petitioners in these consolidated cases,

asks whether Plaintiffs’ allegations against

Petitioners are sufficient to state a plausible claim to

relief under the pleading requirements established by

this Court in Ashcroft v. Igbal, 556 U.S. 662 (2009).

All three Petitioners contend that the court below did

not faithfully apply the Jgbal pleading requirements.

Brief for the Petitioners John D. Ashcroft and Robert

Mueller (“Ashcroft Br.”) 40; Brief for Petitioners

Dennis Hasty and James Sherman (“Ashcroft Br.”) 46;

Brief of Petitioner James W. Ziglar (“Ziglar Br.”) 22.

AAJ contends to the contrary that the Second

Circuit applied the Jgba/ pleading standards properly.

Further, in AAJ’s view, the more stringent standard

urged upon this Court by Petitioners is not consistent

with Jqgbal, is not consistent with the motion to

dismiss standards universally applied by the federal

circuit courts of appeals following Jqbal, and is not

consistent with the constitutional right to trial by jury

guaranteed by the Seventh Amendment.

A. The court below properly held that

Plaintiffs’ allegations allow the

reasonable inference that

Defendants are liable for the alleged

misconduct.

In Jgbal this Court held that to survive a

motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), “a complaint must contain

6

sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.” 556 U.S.

at 678 (quoting Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)). A claim satisfies this

plausibility standard if Plaintiff “pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the

misconduct alleged.” 556 U.S. at 678. The complaint

in this case well exceeds that standard.

AAJ does not undertake a close analysis of the

facts and inferences detailed in the plaintiffs’

complaint, as these are thoroughly discussed by the

parties. AAJ, however, is intensely interested in the

pleading standards applied by the Second Circuit and

challenged in this Court by Petitioners. As this Court

stated in Iqbal, these standards apply “to all civil

actions,” with limited exceptions, id. at 684 (citing

Twombly, 550 U.S. 555-56 & n.3). Those include civil

actions in which AAJ members seek to vindicate the

rights of those who have been wrongfully injured or

harmed.

The pleading standard applied by the lower

court is easily discerned from the court’s assessment

of a central issue in Plaintiffs’ claim that Defendants

deprived them of their constitutional rights: That

Petitioners subjected Plaintiffs to harsh conditions of

confinement for no legitimate governmental purpose,

but “simply because he happened to be—or, worse yet,

appeared to be—Arab or Muslim.” Turkmen v. Hasty,

789 F.3d 218, 245 (2d Cir. 2015).

The September 11 attacks were unique, not

only in the scope of destruction, but also in the intense

response of law enforcement and the fearful confusion

of many Americans, who had little understanding of

their attackers. Sentiments that all Arabs or Muslims

should be punished for the crimes of 19 Saudis were

not uncommon.

Plaintiffs were arrested in the course of this

investigation for various immigration law violations.

They were detained at the administrative maximum

special housing unit (““ADMAX SHU”) while the FBI

cleared each detainee of any connection with

terrorists or terrorist activities. This Court has noted

that these arrests and detentions could be justified as

a precaution against unwittingly allowing a person

guilty of the Sept. 11 attacks to escape the country.

Iqbal, 556 U.S. at 682. Plaintiffs here are not

challenging their arrests or initial detention. Instead,

they allege that the harsh conditions of their

confinement in the absence of any individualized

suspicion of ties to terrorism violated their

constitutional rights.

The conditions Plaintiffs endured at the

ADMAX SHU were indeed harsh. Detainees were

confined to small cells for 23 hours a day. First Am.

Compl. (“FAC”) { 76 They were shackled and chained

whenever they did leave their cells, id. at | 76, and

were physically and verbally assaulted. Jd. at JJ 105,

109 & 136. They were deprived of sleep, id. at J 119,

adequate food, id. at 4 128, and proper medical

attention, id. at ¥ 108. They were strip searched

whenever moved from their cells, and sometimes

randomly in their cells. Jd. at {f 112 & 113. Those

strip searches were frequently accompanied by verbal

insults, ridicule, videotaping and physical assault, all

in violation of written policy. Jd. at § 116. Their

“recreation” exposed them to the elements in freezing

weather with inadequate clothing. Jd. at | 122.

8

These and other allegations of harsh treatment

were specific and based on first-hand experience. The

court below concluded that these conditions were not

justified by the need to investigate possible terrorist

connections, and “were not reasonably related to a

legitimate goal, but rather were punitive and

unconstitutional.” 789 F.3d at 245 (citing Bell v.

Wolfish, 441 U.S. 520, 539 (1979)).

Still, as this Court made clear in Iqbal, the

governmental officials in charge of Plaintiffs’

confinement “may not be held liable for the

unconstitutional conduct of their subordinates under

a theory of respondeat superior.” 556 U.S. at 676. A

plaintiff must plead that the officials themselves

“acted with discriminatory purpose.” Jd.

As is often the case, plaintiffs cannot point to a

document or recorded statement in which Petitioners

directly expressed a discriminatory purpose for their

actions. Nevertheless, this Court stated, “discrete

wrongs—for instance, beatings—by lower level

Government actors .. . if true, and if condoned by

petitioners, could be the basis for some inference of

wrongful intent on petitioners’ part.” Jd. at 683.

The court below determined that Petitioners

were entitled to that inference because they plausibly

pleaded that the Defendants knew of the severe

conditions imposed on the ADMAX SHU detainees

and knew that the government had no individualized

suspicion that any of the Plaintiffs had any connection

to terrorism. This was sufficiently pleaded both with

respect to the DOJ Defendants (Petitioners Ashcroft,

Mueller, and Ziglar), 789 F.3d at 242, and with respect

to MDC Defendants (Petitioners Hasty and Sherman).

Id. at 248.

9

Plaintiffs’ allegations in this regard are

detailed and specific. Investigation of the attacks and

the search for those responsible were the highest

riority of federal law enforcement agencies in the

months following September 11. Petitioners were

closely involved in directing that endeavor. FBI

Director Mueller ordered that the investigation be run

out of FBI Headquarters, under his direct control.

FAC 4 56. He “was in daily contact with the FBI field

offices regarding the status of individual clearances.”

Id. | 57. Ashcroft, Mueller and a small group of high

government officials met regularly and “mapped out

ways to exert maximum pressure on the individuals

arrested in connection with the _ terrorism

investigation,” Jd. { 61. The punitive conditions in

which Plaintiffs were held were the direct result of

this strategy. Jd. | 65. Attorney General Ashcroft

insisted on receiving regular, detailed reports,

including a daily Attorney General’s Report on

persons arrested and other developments, which he

used to brief the President and the National Security

Council on the progress of the investigation. Id J 63.

Commissioner Ziglar attended the small group

discussions regarding the confinement of 9/11

detainees. Jd. | 62. He received twice-daily briefings

with his staff regarding the detentions, which

provided information for his briefings to the Attorney

General. Id. J 64. On this basis, Plaintiffs alleged that

“Ashcroft, Mueller and Ziglar knew that the FBI had

not developed any reliable evidence tying Plaintiffs

and class members to terrorism, yet authorized their

prolonged detention in_ restrictive conditions

nonetheless.” Jd. J 67.

The court determined that Plaintiffs’

allegations were well-pleaded and “render plausible

the claim that” the DOJ Defendants knew of the MDC

10

Plaintiffs’ confinement under severe conditions and

knew “the government had no evidence linking the

MDC Plaintiffs to terrorist activity.” 789 F.3d at 246.

The court recognized that this claim was not a fact to

be assumed true, but rather it was a reasonable

inference from those facts. Given the steady stream of

information to the DOJ Defendants and their central

roles in the investigation, “it seems to us plausible

that information concerning conditions at the MDC . .

. reached the DOJ Defendants.” Id. at 240.

Of course, we cannot say for certain that

daily reports given to Ashcroft and

Mueller detailed the conditions at the

ADMAX SHU or that the daily meetings

of the SIOC Working Group (containing

representatives from each of the DOJ

Defendants’ offices) discussed those

conditions. But on review of a motion to

dismiss, Plaintiffs need not prove their

allegations; they must plausibly plead

them.

Id.

Similarly, the daily reports each DOJ

defendant received regarding the status of the

investigation and the detainees “support the

reasonable inference” that the defendants learned

“within weeks of 9/11” that detainees were being held

“for whom the FBI had not developed any reliable tie

to terrorism.” Jd. at 241. The court also noted

Plaintiffs’ allegation that some Justice Department

officials had expressed misgivings about the conduct

of the investigation, and stated that, in view of the

daily briefings, “[t]he DOJ defendants were unlikely

to have remained unaware of these concerns,” Jd. at

11

254. Further, conditions in the ADMAX SHU soon

began to receive media attention, as the OIG Report

pointed out. “{{|t seems implausible that the public’s

coneerns did not reach the DOJ Defendants’ desks. Jd.

at 240.

With respect to Warden Hasty and Associate

Warden Sherman, the Complaint alleged that they

ordered and approved the “extremely restrictive

conditions of confinement” in the ADMAX SHU. FAC

q{ 24 & 75, even though both “were aware that the

FBI had not developed any information” connecting

Plaintiffs to terrorism. Jd. at | 69. Hasty and

Sherman received regular written updates explaining

why each detainee had been arrested and “evidence

relevant to the danger he might pose” to the MDC, yet

these updates often lacked any indication of a

suspicion of a tie to terrorism. Jd. at { 69. The court

below concluded that plaintiffs had plausibly pleaded

a substantive due process violation based on detaining

them in restrictive conditions knowing that there was

no individualized suspicion tying any of them to

terrorism. 789 F.3d at 248.

Plaintiffs also pleaded that Hasty could be

liable for abuses committed by MCD guards, alleging

that Hasty ignored evidence of abuses and

disregarded reports by staff and detainees of physical

and verbal abuse. FAC 77 77-78, 107, 110. The court

concluded that these factual allegations “permit the

inference that [Hasty] knew that MDC staff subjected

the MDC Plaintiffs to the ‘unofficial abuses’ and

permitted—if not facilitated—the continuation of

these abuses.” 789 F.3d at 250.

The lower court made clear that on motion to

dismiss a plaintiff is not required to identify evidence

12

that would support a verdict in his favor. As the court

noted, “Discovery may show that the Defendants—the

DOJ Defendants, in particular—are not personally

responsible for detaining Plaintiffs in these

conditions. . . . The question at this stage of the

litigation is whether the MDC Plaintiffs have

plausibly pleaded that the Defendants exceeded the

bounds of the Constitution in the wake of 9/11. We

believe that they have.” Jd. at 264.

The court also pointed out that the pleaded

facts could reasonably support two conflicting

inferences and that both could be plausible. The court

indicated that its role was not to weigh one against

the other. “Because either is plausible, it is irrelevant

that only inference (a) supports the conclusion”

claimed by Plaintiffs. Jd. at 243.

Petitioners assert several grounds for reversal.

Of primary concern to AAJ is their contention that the

court below was not entitled to draw the inferences

described above because alternative explanations for

the facts consistent with innocence were at least as

likely.

B. Defendants argue that the existence

of more likely alternative inferences

requires dismissal.

Petitioners do not seriously dispute plaintiffs’

factual allegations concerning the conditions of their

confinement. However, they offer alternative

explanations for those facts. The DOJ Defendants

contend that, as in Iqbal, “the challenged actions

‘were likely lawful and _ =justified by [al

nondiscriminatory—and nonpunitive—intention ‘to

detain aliens who were illegally present in the United

13

States and who had potential connections to those

who committed terrorist acts.” Ashcroft Br. 42-43

(quoting Iqbal, 556 U.S. at 682).2

Petitioners Ashcroft and Mueller repeatedly

assert that a court may not draw any inference from

factual allegations that is not as likely as or more

likely than competing alternative inferences offered

by Defendants. For example, one issue involved the

decision to merge the national INS list of of-interest

arrestees with the New York FBI's list which

contained many detainees with no basis for suspicion

of terrorism. The DOJ Defendants contend that

Plaintiffs’ “theory of liability founders because the

most likely explanation for the [lists-merger] decision

is unconnected to any discriminatory purpose.”

Ashcroft Br. 17. They also reject Plaintiffs’ allegation

that the Attorney General made the decision to merge

the lists, arguing that an alternative reading of the

Inspector General’s report suggests that the decision

was made by Deputy Attorney General Levey.

Ashcroft Br. 45. See also id. at 48 (The “inference of

2 In fact, the “challenged actions” quoted by Ashcroft

were “the arrests Mueller oversaw.” 556 U.S. at 682. The

purported nondiscriminatory intent for holding Plaintiffs in

the harsh conditions at ADMAX SHU is belied by the fact that

such conditions were not deemed warranted for PENTBOM

detainees at the Passaic County Jail or other non-federal

facilities. FAC 4 66. In addition, immigration arrestees who

were not Arab or Muslim (or Arab or Muslim in appearance)

were not subjected to these conditions. Jd. at [9 43 & 60c. By

contrast, a Nepalese Buddhist, was held at ADMAX SHU

because a government employee mistakenly reported seeing

an “Arab male” taking photographs. /d. at | 230. Moreover,

many detainees remained confined in the ADMAX SHU even

after having been cleared of any terrorist ties by the New York

FBI field office and FBI Headquarters. Jd. at 188.

14

discriminatory intent on Ashcroft’s part is belied by

the obvious alternative explanation for the lists-

merger decision,” i.e. concern that the FBI could

unwittingly permit a dangerous individual to be

released.). On another issue, also equating “likely”

with “plausible,” see id. at 46 (“Nor is it likely (as

opposed to merely possible) that the regular arrest

reports provided to petitioners indicated that some

individuals were being detained without any evidence

of a potential connection to terrorism.”).

Petitioner Ziglar similarly contends that

“where there exists an obvious. alternative

explanation for actions that the FAC alleges, . . . the

respondents’ claims of unconstitutional motive [are]

implausible.” Ziglar Br. 31. He argues, for example,

that the allegation that the DOJ defendants

“maintained restrictive confinement after learning

that the FBI had not made _ individualized

assessments” are implausible because a court cannot

conclude “that defendants were not more likely

concerned with national security than with

discrimination on basis of race or religion.” (emphasis

added).

The MDC Defendants also suggest that, to be

plausible, a claim must negate alternative inferences

that would favor the defense. They contend, for

example, that the FBI updates, from which the court

inferred that Hasty and Sherman were aware of the

lack of individualized suspicion, could also be

interpreted as containing only information relevant to

potential dangers to the MDC itself, consistent with

their belief that the FBI would not send into a prison

“all the potentially sensitive domestic and foreign

intelligence information it was obtaining about

detainees.” Hasty Br. 49 (emphasis in original).

15

Hasty further suggests that “[nJecessary

delegation of authority and reliance on subordinates

provides a far ‘more likely’ explanation” for his

srceived indifference to evidence of abuses by guards

at the ADMAX SHU. Hasty Br. 56. See a/so id. at 50

& 51 (faulting the lower court for not accepting an

alternative “more likely” interpretation of allegedly

false statement in memorandum). As with the claims

against the DOJ Defendants, the court indicated that

“(rjecord proof may eventually establish that the MDC

Plaintiffs’ claim” is more limited. 789 F.3d at 249.

However, at the motion to dismiss stage, “we conclude

that the MDC Plaintiffs plausibly plead a substantive

due process claim against Hasty and Sherman.” 7d.

ll. The Pleading Standards Proposed by

Petitioners Are Not Supported by Iqbal.

A. Iqbal does not require the court to

weigh the likelihood of Plaintiff's

allegations and inferences against

competing inferences favoring

Defendant.

Although Iqbal used the term “likely” in the

context of the facts of that case, 556 U.S. 681, the

Court made clear that the test it applied was whether

“the factual allegations in respondent’s complaint .. .

plausibly suggest an entitlement to relief.” The Court

also made clear that this pleading standard is not a

“more likely than not” standard. Obviously there can

be more than one reasonable inference from a given

set of facts. The Court in Jgbal emphasized that a

court on motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6) is not called upon to determine

whether one interpretation of the facts is more likely

than the other. “The plausibility standard is not akin

16

to a ‘probability requirement.” 556 U.S. at 678,

referring to this Court’s fuller explanation of this

point in Twombly:

Asking for plausible grounds to infer an

agreement does not impose a probability

requirement at the pleading stage; it

simply calls for enough fact to raise a

reasonable expectation that discovery

will reveal evidence of illegal [ity]. And, of

course, a well-pleaded complaint may

proceed even if it strikes a savvy judge

that actual proof of those facts is

improbable, and that a recovery is very

remote and unlikely.

550 U.S. at 556 (internal quotation marks omitted).

The purpose of this pleading requirement is not

to require the plaintiff to demonstrate the merits of

his or her case at this early stage, but to “satisfy the

requirement of providing not only fair notice of the

nature of the claim, but also grounds on which the

claim rests. Jd. at 555 n.3 (internal quotes omitted).

This limited standard at the pleading stage is

consistent with the “assumption [on motion to

dismiss] that all the allegations in the complaint are

true (even if doubtful in fact).” Jd. (citing Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002), and

Neitzke v. Williams, 490 U.S. 319, 327 (1989) (“Rule

12(b)(6) does not countenance ... dismissals based on

a judge’s disbelief of a complaint’s factual

allegations”)).

17

B. The great weight of authority

among the federal courts of appeals

rejects the proposition that Iqbal

requires the court to choose the

most likely inference from factual

pleadings.

It is a “proposition that is at the heart of the

application of the Rule 12(b)(6) motion,” that not only

is the complaint to be construed in the light most

favorable to the plaintiff and its factual allegations

taken as true, but that “all reasonable inferences that

can be drawn from the pleading are drawn in favor of

the pleader.” 5B Charles Alan Wright & Arthur R.

Miller, et al., Fed. Prac. & Proc. Civ. § 1357 (3d ed.

2004).

The courts of appeals have universally followed

this proposition in applying the plausibility standard

required by Iqbal. See, e.g., Najas Realty, LLC uv.

Seekonk Water Dist., 821 F.3d 134, 140 (1st Cir. 2016)

(“We take all well-pleaded facts in the light most

favorable to the non-moving party and draw all

reasonable inferences in that party's favor.”);

Lowinger v. Morgan Stanley & Co. LLC, 841 F.3d 122,

126 (2d Cir. 2016) (“Upon review of a dismissal of a

complaint under Fed. R. Civ. P. 12(b)(6), the facts, and

inferences to be drawn from those facts, are viewed in

the light most favorable to the plaintiff.”); Bolick v.

Northeast Indus. Servs. Corp., No. 16-2463, 2016 WL

6804922, at *1 (3d Cir. Nov. 17, 2016) (same);

Harbourt v. PPE Casino Resorts Maryland, LLC, 820

F.3d 655, 658 (4th Cir. 2016) (“we . . . construe the

facts and reasonable inferences derived therefrom in

the light most favorable to the plaintiff.”); Leal v.

Corpus Christi-Nueces Cnty. Pub. Health Dist., 647

Fed. Appx. 514, 515 (5th Cir. 2016) (same); Doe v.

18

Cummins, No. 16-3334, 2016 WL 7093996, at *5 (6th

Cir. Dec. 6, 2016) (“. . . drawing all reasonable

inferences in the plaintiffs favor”); Berger v. Natl

Collegiate Athletic Ass'n, No. 16-1558, 2016 WL

7051905, at *2 (7th Cir. Dec. 5, 2016) (same); K.B. v.

Perez, No. 16-1155, 2016 WL 7030320, at *2 (10th Cir.

Dec. 2, 2016) (same); Villarreal v. R.J. Reynolds

Tobacco Co., 839 F.3d 958, 975 (11th Cir. 2016)

(same).

This foundational proposition necessarily

suggests that a reasonable inference is sufficient and

need not be the most probable inference, or one that is

more likely than an alternative inference that favors

the defendant. This Court strongly indicated as much

in Tellabs, Inc. v. Makor Issues & Rights, Lid., 551

U.S. 308, 329 (2007). The Court there addressed the

requirement in the Private Securities Litigation

Reform Act of 1995 that a pleading “state with

particularity facts giving rise to a strong inference

that the defendant acted with the required state of

mind.” 15 U.S.C. § 78u-4. Justice Scalia argued that

“the test should be whether the inference of scienter

Gif any) is more plausible than the inference of

innocence.” 551 U.S. at 329 (Scalia, J., concurring).

This Court rejected that pleading standard as too

stringent. Jd at 324 n.5. Certainly if more-likely-than

an alternative inference is too high a pleading

standard under a statute that demands enhanced

pleading, it is surely too high a standard under

Federal Rule of Civil Procedure 8.

Consequently, the federal courts of appeals

have widely held that Jgbal does not require a plaintiff

on motion to dismiss, to plead an interpretation of the

facts that is more probable or likely than defendant’s

interpretation, and they have found reversible error

19

where district courts have weighed opposing

inferences and chosen the likelier. For example, the

First Circuit found it reversible error for the district

court to dismiss plaintiffs cause of action where the

court “improperly occupied a factfinder role when it

both chose among plausible alternative theories

interpreting defendants’ conduct and adopted as true

allegations made by defendants in weighing the

plausibility of theories put forward by the parties.”

Evergreen Partnering Grp., Inc. v. Pactiv Corp., 720

F.3d 33, 50 (1st Cir. 2013); see also Anderson News,

L.L.C. v. American Media, Inc., 680 F.3d 162, 185 (2d

Cir. 2012), cert. denied, 133 S. Ct. 846 (2013) (The

court “may not properly dismiss a complaint that

states a plausible version of the events merely because

the court finds a different version more plausible.”); Jn

re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 341

n.42 (3d Cir. 2010) Uqbal “does not require as a

general matter that the plaintiff plead facts

supporting an inference of defendant’s liability more

compelling than the opposing inference.”).

The Fourth Circuit cautioned, “[w]hen a court

confuses probability and plausibility, it inevitably

begins weighing the competing inferences that can be

drawn from the complaint. But it is not our task at the

motion-to-dismiss stage to determine ‘whether a

lawful alternative explanation appear(s] more likely’

from the facts of the complaint.” SD3, LLC v. Black &

Decker (U.S.) Inc., 801 F.3d 412, 425 (4th Cir. 2015)

(quoting Houck v. Substitute Trustee Servs., Inc., 791

F.3d 473, 484 (4th Cir. 2015)). See also Shandong

Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607

F.3d 1029, 1032 (5th Cir. 2010) (“The court’s task [on

a Rule 12(b)(6) motion] is to determine whether the

plaintiff has stated a legally cognizable claim that is

plausible, not to evaluate the plaintiffs likelihood of

20

success,” (citing Jgbal, 556 U.S. 662)); Watson Carpet

& Floor Covering, Inc. v. Mohawk Indus., Inc., 648

F.3d 452, 458 (6th Cir. 2011) (“Often, defendants’

conduct has several plausible explanations. Ferreting

out the most likely reason for the defendants’ actions

is not appropriate at the pleadings stage.”).

As the Seventh Circuit in a _ widely-cited

decision by Judge Diane P. Wood explained:

‘Plausibility’ in this context does not

imply that the district court should

decide whose version to believe, or which

version is more likely than not... . In

other words, the court will ask itself

could these things have happened, not

did they happen. For cases governed by

Rule 8, it is not necessary to stack up

inferences side by side and allow the case

to go forward only if the plaintiff's

inferences seem more compelling than

the opposing inferences.

Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir.

2010) (emphasis in original). See also Braden v. Wal-

Mart Stores, Inc., 588 F.3d 585, 597 (8th Cir. 2009)

(“Requiring a plaintiff to rule out every possible lawful

explanation for the conduct he challenges would

invert the principle that the complaint is construed

most favorably to the nonmoving party, and would

impose the sort of ‘probability requirement’ at the

pleading stage which Jgbal and Twombly explicitly

reject.”) (internal quotation and citation omitted);

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (“If

there are two alternative explanations, one advanced

by defendant and the other advanced by plaintiff, both

of which are plausible, plaintiff's complaint survives a

21

motion to dismiss under Rule 12(b)(6).”) Speaker v.

U.S. Dep't of Health & Human Servs. Centers for

Disease Control & Prevention, 623 F.3d 1371, 1386

(11th Cir. 2010) (Plaintiff “need not prove his case on

the pleadings—his Amended Complaint must merely

provide enough factual material to raise a reasonable

inference, and thus a plausible claim.”); In re Bill of

Lading Transmission & Processing Sys. Patent Litig.,

681 F.3d 1323, 1339-40 (Fed. Cir. 2012) (Finding

reversible error in the district court’s failure to draw

all reasonable inferences in favor of the non-moving

party. “Twombly did not alter this basic premise.

Nothing in Twombly or its progeny allows a court to

choose among competing inferences as long as there

are sufficient facts alleged to render the non-movant’s

asserted inferences plausible.”).

As the foregoing decisions indicate, Petitioners’

proposal—that a plaintiffs claim is subject to

dismissal where the court finds that defendant’s

explanation of or inferences from the facts are more

likely than plaintiff's—violates both the principle that

plaintiffs factual allegations must be taken as true

and the principle that all reasonable inferences from

the pleadings must be draw in favor of the pleader. In

addition, AAJ submits, Petitioner’s probability

requirement at the pleading stage violates the

Seventh Amendment right to trial by jury.

22

Iii. THE PLEADING STANDARD PROPOSED

BY PETITIONERS VIOLATES THE

SEVENTH AMENDMENT.

A. The constitutional right to trial by

jury is of fundamental importance

and this Court has historically

guarded against any interference

with that right.

Then-Justice Rehnquist emphasized that the

“right of trial by jury in civil cases at common law is

fundamental to our history and jurisprudence.”

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 338

(1979) (Rehnquist, C.J., dissenting). Its scope and

effect “perhaps more than with any other provision of

the Constitution, are determined by reference to the

historical setting in which the amendment was

adopted.” Id. at 339. That historical setting is notable

for “the passion and violence with which the civil jury

was defended during the Revolutionary era and the

constitutional ratification debate.” Alan Howard

Scheiner, Judicial Assessment of Punitive Damages,

and the Politics of Jury Power, 91 Colum. L. Rev. 142,

146-47 (1991).

The colonists had bitterly resented England's

transfer of civil disputes from colonial courts, where

local juries sat, to Vice-Admiralty courts and other

non-jury tribunals administered by the Crown's

judges. See Roscoe Pound, The Development of

Constitutional Guarantees of Liberty 69-72 (1957).

Their list of grievances against the King, justifying

their break with England, included “depriving us, in

many cases, of the Benefits of Trial by Jury.”

Declaration of Independence J 20 (1776). “The

struggle over jury rights was, in reality, an important

23

aspect of the fight for American independence and

served to help unite the colonies.” Stephan Landsman,

The Civil Jury in America: Scenes From an

Unappreciated History, 44 Hastings L.J. 579, 596

(1993). For that reason, many in the founding

generation demanded a Bill of Rights that would

preserve the civil jury from encroachment by federal

judges. See Gasperini v. Center for Humanities, Inc.,

518 U.S. 415, 450-51 (1996) (Scalia, J., dissenting).

But on September 12, 1787, as_ the

Constitutional Convention was ending its work in

Philadelphia, James Wilson “observed to the House

that no provision was yet made for juries in Civil cases

and suggested the necessity of it.” The motion to add

that right, however, failed. Edith Guild Henderson,

The Background of the Seventh Amendment, 80 Harv.

L. Rev. 289, 293-94 (1966). To many, that omission

suggested “virtual abolition of the civil jury,” and it

very nearly doomed ratification of the entire

constitution. Jd. 295-98; Charles W. Wolfram, The

Constitutional History of the Seventh Amendment, 57

Minn. L. Rev. 639, 672 n.89 (1973). Only after the

Federalists agreed to add a Bill of Rights containing

such a jury guarantee did the Constitution win

ratification. Parsons v. Bedford, 28 U.S. (3 Pet.) 433,

445 (1830); Henderson, supra, at 295-98.

Historically, this Court has _ rigorously

safeguarded this right. “During the first 180 years of

the Bill of Rights, the constitutional guarantee most

frequently and aggressively enforced by the Supreme

Court was the seventh amendment right to trial by

jury in civil cases.” Eric Schnapper, Judges Against

Juries—Appellate Review of Federal Civil Jury

Verdicts, 1989 Wis. L. Rev. 237, 237 (1989). The threat

to trial by jury in modern times, Justice Hugo Black

24

and Chief Justice William Rehnquist have both

warned, is not its outright elimination but “the

gradual process of judicial erosion” of the Seventh

Amendment guarantee under the guise of

interpreting procedural] rules. Parklane Hosiery Co.,

439 U.S. at 339 (Rehnquist, J., dissenting) (quoting

Galloway v. United States, 319 U.S. 372, 397 (1943)

(Black, J., dissenting)).

Although this Court in Jgbal indicated that the

efficient operation of the federal judiciary and

protection of defendants from burdensome discovery

are important factors, AAJ urges the Court to heed

the cautionary warning raised by then-Justice

Rehnquist against expanding inroads on the jury

right:

(N]o amount of argument that the device

provides for more efficiency or more

accuracy or is fairer will save it if the

degree of invasion of the jury’s province

is greater than allowed in 1791. The rule

otherwise would effectively permit

judicial repeal of the Seventh

Amendment ... The guarantees of the

Seventh Amendment will prove

burdensome in some instances; the civil

jury was surely a burden to the English

governors who, in its stead, substituted

the vice-admiralty court. But, as with

other provisions of the Bill of Rights, the

onerous nature of the protection is no

license for contracting the right secured

by the Amendment.

Parklane Hosiery Co., 439 U.S. at 348 (Rehnquist, J.,

dissenting). As this Court has repeatedly declared:

25

Maintenance of the jury as a fact-finding

body is of such importance and occupies

so firm a place in our history and

jurisprudence that any seeming

curtailment of the right to a jury trial

should be scrutinized with the utmost

care.

Dimick v. Schiedt, 293 U.S. 474, 486 (1935), quoted in

Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 501

(1959); and in Chauffeurs, Teamsters and Helpers,

Local No. 391 v. Terry, 494 U.S. 558, 565 (1990).

AAJ submits that curtailment of the jury right

through the use of unduly stringent pleading

requirements to pretermit a jury determination of the

facts of a case warrants such scrutiny.

B. The requirement suggested by

Petitioners would interfere with the

jury’s constitutional factfinding

responsibility.

Petitioners’ proposed pleading standard, under

which the court must dismiss plaintiffs complaint if

the factual] pleadings and the inferences therefrom are

not more likely than competing inferences that favor

defendants, represents an intrusion into the

factfinding role of the jury that the Constitution does

not permit.

The Seventh Amendment provides:

In Suits at common law, where the value

in controversy shall exceed twenty

dollars, the right of trial by jury shall be

preserved, and no fact tried by a jury,

shall be otherwise reexamined in any

26

Court of the United States, than

according to the rules of common law.

U.S. Const. amend. VII.

This Court has long held that the “common law”

in this context refers to the common law of England

existing at the time the amendment was ratified. This

Court has explained:

Since Justice Story’s day, United States

v. Wonson, 28 F. Cas. 745, 750 (No.

16,750) (CC Mass. 1812), we have

understood that “[tl]he right of trial by

jury thus preserved is the right which

existed under the English common law

when the Amendment was adopted.”

Baltimore & Carolina Line, Inc. v.

Redman, 295 U.S. 654, 657 (1935). In

keeping with our longstanding

adherence to this “historical test,”

Wolfram, The Constitutional History of

the Seventh Amendment, 57 Minn. L.

Rev. 639, 640-643 (1973), we ask, first,

whether we are dealing with a cause of

action that either was tried at law at the

time of the founding or is at least

analogous to one that was, see, e.g., Tull

v. United States, 481 U.S. 412, 417

(1987).

Markman v. Westview listruments, 517 U.S. 370, 376

(1996). The Seventh Amendment “has in effect

adopted the rules of the common law in respect of trial

by jury as these rules existed in 1791.” Dimick, 293

US. at 487. See also Thompson v. Utah, 170 U.S. 343,

350 (1898) (stating that “common law” in the Seventh

27

Amendment refers to English common law in 1791);

cf. Feltner v. Columbia Pictures Television, Inc., 523

U.S. 340, 348 (1998) (The right extends both to

common-law causes of action and to “actions brought

to enforce statutory rights that are analogous to

common-law causes of action ordinarily decided in

English law courts in the late 18th century.”) (quoting

Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42

(1989)).

Thus, where a party has a constitutional right

to a jury trial, a new procedure that affects the jury

trial right (including taking the right away) is

constitutional if the procedure preserves. the

substance of the English common law jury trial in

1791. Slocum v. N.Y. Life Ins. Co., 228 U.S. 364, 379-

80 (1913). For example, in Dimick v. Schiedt, the

Court determined that additur, a procedure under

which the court could augment a jury’s award of

damages based on a finding of inadequacy, violated

the Seventh Amendment because “the established

practice and the rule of the common law, as it existed

in England at the time of the adoption of the

Constitution, forbade the court to increase the amount

of damages awarded by a jury.” 293 U.S. at 482.

Conversely, the court indicated that remittitur, based

upon longstanding practice in American courts and

“some support in the practice of the English courts

prior to the adoption of the Constitution,” would be

upheld, at least where conditioned on grant of a new

trial. Id. at 485. Cf. Hetzel v. Prince William Cnty.,

Va., 523 U.S. 208, 211 (1998) (“[R]equiring the District

Court to enter judgment for a lesser amount than that

determined by the jury without allowing petitioner

the option of a new trial, cannot be squared with the

Seventh Amendment.”).

28

A procedure unknown to common law which

permits a court to take a case from the jury may

nonetheless be upheld under the Seventh Amendment

if the procedure preserves the essential substance of

the jury trial-the jury's responsibility to determine

questions of fact. The Court explained in Slocum, 228

US. 364, that the aim of the Seventh Amendment ts

not to preserve “mere matters of form and procedure”

but rather the “substance” of the right to a jury trial.

Id. at 378. The Court identified “the right so preserved

[as] the right to have the issues of fact presented by

the pleadings tried by a jury. /d. at 399.

The closest analogous procedure to pretrial

dismissal known to the common law is the demurrer

to the pleadings. As the Advisory Committee’s Notes

to the Federal Rules of Civil Procedure state, “Rule

12(b\G6), permitting a motion to dismiss for failure of

the complaint to state a claim on which relief can be

yranted, is substantially the same as the old demurrer

for failure of a pleading to state a cause of action.” Fed.

R. Civ. P. 12(bx6), Advisory Committee’s Notes to the

Federal Rules of Civil Procedure, Notes to the 1948

amendments. Indeed, demurrer to the pleadings was

the only pretrial procedure at common law “that

would allow a judge to determine before trial that a

case presented no issue to be decided by a jury, or that

an issue in a case should be withheld from the jury.”

Suja A. Thomas, 7/he Seventh Amendment, Modern

Procedure, and the English Common Law, 82 Wash.

U. L.Q. 687, 706 n.111 (2004) (quoting James Oldham,

The Seventh Amendment Right to Jury Trial: Late-

Eighteenth-Century Practice Reconsidered, in Human

Rights and Legal History: Essays in Honour of Brian

Simpson 225, 231 (Katherine O Donovan & Gerry R.

Rubin eds., 2000)).

29

Under the common law demurrer to the

pleadings the demurring party “admits the truth of

those facts, and al] reasonable inferences to be drawn

therefrom.” United States v. Des Moines Nav. & Ry.

Co., 142 U.S. 510, 544 (1892). The non-movant’s

“allegations must be taken as true; and all that can be

reasonably inferred from those allegations . . . must

also be held to be true.” Hammond v. Mason &

Hamlin Organ Co., 92 U.S. 724, 726 (1875).

A similar common law procedure was the

demurrer to evidence which was exercised during

trial, commonly at the close of the plaintiff's evidence.

See, e.g., Gibson v. Hunter, 126 Eng. Rep. 499 (H.L.

1793). As with the demurrer on the pleadings, the

demurrant to the evidence at common law in England

“had to admit all facts shown in evidence against him

and every adverse inference that a jury could draw

from that evidence.” Henderson, supra, at 304-05 &

n.48 (emphasis added). This Court, as well, has stated

that a “demurrer to evidence admits not only the facts

stated therein, but also every conclusion which a jury

might fairly or reasonably infer therefrom.” Parks v.

Ross, 52 U.S. 362, 373 (1850) (emphasis added). See

Fowle v. Alexandria, 24 U.S. (11 Wheat.) 320, 323

(1826) (A demurrer to the evidence admits “whatever

the jury may reasonably infer from the evidence.”).

The crucial aspect of the demurrer for Seventh

Amendment purposes is that, because the movant

admitted the truth of every alleged fact and the

inferences drawn therefrom, the common law court

undertook no assessment of the facts or their weight

or their comparative likelihood. The court simply

accepted the facts pled by the plaintiff and the

inferences from those facts that supported plaintiffs

claim, however improbable the court might deem

30

them. As Professor Arthur Miller has noted, “The

Federal Rules replaced the demurrer and the code

motion to dismiss with the Rule 12(b)(6) motion.” Yet

those common law procedures “focused exclusively on

the legal sufficiency of the plaintiffs statement of each

substantive element of a cause of action, and did not

involve a judicial assessment of the case’s facts or

actual merits.” Arthur R. Miller, From Conley to

Twombly to Iqbal: A Double Play on the Federal Rules

of Civil Procedure, 60 Duke L.J. 1 (2010).

The standard proposed by Petitioners for

passing on a motion to dismiss under Rule 12(b)(6), by

contrast, does not limit the court to deciding questions

of law upon admitted facts and inferences. Petitioners

would have the court make an assessment of the

inferences pled by the plaintiff compared to

alternative inferences favoring defendants and adopt

for its analysis those inferences that are more

probable or likely. In short, the court would take the

case away from the jury, not as a consequence of its

decision of a question of law, but on the basis of its

interpretation of the pleaded facts.

Such a procedure clearly violates the Seventh

Amendment:

The aim of the amendment, as this Court

has held, is to preserve the substance of

the common-law right of trial by jury, as

distinguished from mere matters of form

or procedure, and particularly to retain

the common-law distinction between the

province of the court and that of the jury,

whereby .. . issues of law are to be

resolved by the court and issues of fact

31

are to be determined by the jury under

appropriate instructions by the court.

Baltimore & Carolina Line v. Redman, 295 U.S. 654,

657 (1935).

As this Court has also emphasized, the issue “of

vital significance in trial by jury is that issues of fact

be submitted for determination with such instructions

and guidance by the court as will afford opportunity

for that consideration by the jury which was secured

by the rules governing trials at common law.”

Gasoline Prods. Co. v. Champlin Refining Co., 283

U.S. 494, 498 (1931). For this reason, protecting the

“substance” of the right to a jury trial as it existed in

1791 “requires that questions of fact in common law

actions shall be settled by a jury, and that the court

shall not assume, directly or indirectly, to take from

the jury or to itself such prerogative.” Slocum v. N.Y.

Life Ins. Co., 228 U.S. 364, 424 (1913).

Consequently, the pleading requirement

proposed by Petitioners—that the court weigh

plausible inferences from the facts and select the one

which is most likely—would violate the substance of

the right to jury trial protected by the Seventh

Amendment.

CONCLUSION

For the foregoing reasons, AAJ asks this Court

to affirm the decision of the court of appeals.

32

December 23, 2016 Respectfully submitted,

Jeffrey R. White

Counsel of Record

AMERICAN ASSOCIATION

FOR JUSTICE

777 6% St., NW, Ste. 200

Washington, DC 20001

(202) 944-2839

jeffrey. white@justice.org

Attorney for Amicus Curiae