Iqbal plausibility and the First Amendment

When the Supreme Court handed down the Iqbal decision in 2009, it changed the pleading standard for attorneys filing lawsuits in federal court. It is not enough to plead a claim for relief. You have to plead a plausible claim. The Court of Appeals finds that a First Amendment claim against New York City is plausible, and it therefore reinstates the lawsuit.

The case is Kregler v. City of New York, decided on May 3.

Here is the standard under Iqbal, a standard that plaintiffs' lawyers are going to have to memorize: “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Aschroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).

Kregler is a City firefighter who wanted to be a City Marshal. He publicly announced his support for a candidate in a heated political campaign. He alleged in his lawsuit that "employees of the New York City Fire Department induced contacts at the Department of Investigation to prevent his appointment as a City Marshal." This case poses the question: is Kregler's claim sufficiently plausible to survive a motion to dismiss?

The answer is Yes, the Court of Appeals (Calabresi, Kearse and Jacobs) holds in a summary order:

This allegation is neither a legal conclusion nor asserts a claim that is implausible on its face. Kregler’s claim that political animus caused certain defendants to lie about or mischaracterize Kregler’s disciplinary record, and that that same political animus caused other defendants to accept their misrepresentations is not implausible on its face and therefore not susceptible to a motion to dismiss.

The plausibility theory of Complaint drafting requires the trial judge to decide whether the allegations in the lawsuit are, well, plausible. This standard requires the court to draw upon its experience in deciding whether the allegations are enough to initiate the discovery process, including depositions, document review, et al. Here, the question was an easy one, which is why the Court of Appeals issued this case as a summary order, not a published opinion. Retaliation against public employees for associating with political candidates happens all the time. Ain't nothing implausible about retaliation in this context.