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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0663%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0663%3A10. Public record. Not legal advice.