As I noted a couple of months ago, the dust kicked up by last year’s Supreme Court decision Bell Atlantic Corp. v. Twombly will take quite a while to settle. In a recent (and ongoing) case in which post-9/11 detainees are suing the federal government, the feds tried to get the case dismissed on the grounds that the facts alleged in the pleadings were unsupported by sufficient evidence. The Court of Appeals for the Second Circuit ruled that the pleadings were “plausible,” borrowing language from Bell Atlantic. According to the New York Times:

The standard for allowing the case to go forward should be higher than mere plausibility, the government said, pointing to recent Supreme Court decisions, including one in an antitrust case last year, that raised the standard for the evidence that plaintiffs must provide at the initial stage in order to withstand a motion to dismiss their lawsuit.

The unnamed antitrust case is a reference to Bell Atlantic and while the NYT article implies that the Government is getting greedy and arguing that even plausibility is insufficient, the text of the appeal makes it look more as if the Government is arguing that even though the Second Circuit couched its opinion in terms of plausibility, the evidence at this early stage is nonetheless insufficient under Bell Atlantic.

The case is styled Ashcroft v. Iqbal and the Supreme Court granted certiorari, meaning that we could soon have a firmer understanding of the impact of Bell Atlantic on the notice pleading system. Stay tuned…