a recess of his hearing i now recognize myself for a short statement first i will say that no fire to put out caused me to be  detained and so i want to apologize to everyone for not getting this meeting started on time and access to the courts and the ability for claims to be heard by a judge or jury a fundamental to our system of justice for over fifty years courts have used the connally standard plaintiffs had the opportunity to present their case to a plaintiff could prove no set of facts in support of his or her claim would he or she built to survive a twelve b six motion to dismiss context specific task that requires the reviewing court to draw on its to do still experience and common sense one critic of this decision commented that this is subjective standard and it could prove devastating to civil rights  concerned that those who need it most will be denied access to the court ball on the net pleading stand as chairman of this subcommittee i believe it is extremely important that plaintiffs be able to survive an initial motion to dismiss when the facts in question can only be answered by information completely in the hands of the defendant alone in discrimination cases including gender race and employment discrimination it is frequently only through the discovery process that plaintiffs i to identify nonpublic information that would support their claims initial studies have indicated that dismissals have increased as much as ten percent in the seven months since the court decided  in fact we already know that employment discrimination claims which the supreme court held were explicitly not subject to a heightened pleading standard in sure  process which congress established and which the judicial conference carries out every year the roots enabling act calls for a deliberate process where the judiciary congress and the block can weigh in on potential rule changes the court is certainly entitled to change its legal interpretation of the kindly pleading stand that however there is a legitimate argument that such a change in the pleading law ought to be done through the rules enabling act process even members of the supreme court have noted that the decision may have changed the federal rules in the words of justice ginsburg this supreme court may have quote messed up the federal rule the proposed legislation h r forty one fifteen that we are considering today was introduced by congressman jim and conyers and myself earlier this year and the bill which is in title open access to courts act of two thousand and nine is an attempt to clarify the pleading stand and ensure that any plane of with a ballot claim will have an opportunity for discovery i look forward to the forward to the testimony of the panel when it when it's time comes and and i look forward to hearing where the night you think the proposed legislation will help clarify the state of notice pleading jurisdiction i now recognize my colleague mr coble the distinguished ranking member of the subcommittee for his opening remarks like this challenge this general here today to discuss proposed chairman nether who's been forced to sit through our lectures to him and the audience normally he's on this side of the hearing process and he gives the lectures him self and now he as to receive them before he can make a statement i don't know if that's just this really read tribute of bill justice or adler and chairman johnson and trying to examine this whole question of access to the courts and that's really what we're here to examine today and it seems to turn mostly around the supreme court decisions of bell  and the other case of ash of versus ball and what we're trying to do is to deal with the phenomenon that's been noted in the nation magazine by herman shorts september thirtieth of this year two thousand and nine in which this distinguished lawyer and professor have published an article entitled the supreme court slams the door and i just want you to hear these two sentences on how much and for me nation's civil complaints in a lawsuit must contain might seem a narrow technical matter of interest only to lawyers and law journals yet it is on just such technicalities that the legal rights of victims of public or private wrongdoings often pain for almost four decades the court's right wing has been perfecting such technicalities as the legal weapons to deny americans an opportunity in force their rights in court and they go on to point out as i do in the rest of my statement that there are a couple of classes of litigants that could be very negatively impacted and the first that come to mind is the fact that  there will be a number of civil rights and civil liberties cases that could be negatively effected and that the claim of weeding out and meritorious claims sounds quite appropriate but sometimes these decisions may throw out the baby with the bath e protection of civil rights is it and this over normally ends up in federal court is essential and the supreme court no cleverly narrowing the rules of procedure by making it harder and harder for those kinds of cases to find their way into court percent behind the statistics numbers countless numbers of people who've suffered an injustice and unable therefore to seek redress in court somebody that the dismissals are higher for cases involving race gender and employment discrimination and it's often difficult to secure evidence that this demonstrates discrimination without first going through discovery but if you can't get to discovery you never get t he case into court and the first instance and so it seems that under these new standards playing this may often be locked out of the courthouse unless they can case i can see this some some say it's unintentional some say it's deliberate but in essence the plaintiffs have to prove their case before they have a chance to gather the evidence to prove their claims and this is not a very good picture and finally the rules and they building provide a procedure for making changes as significant as elevating the pleadings statement while the supreme court does have the power to reverse their prior interpretation it seems more proper to call upon the collective experience of bench and bar to develop these sweeping and significant changes in an depleting standard and so this is an important hearing it's not just for lawyers alone and and glad that chairman adler has been able to go through this without too much encroachment i hope the chair will give him as much time as he needs to make the a criminal investigation that we would require that somebody before they got a search warrant somebody home to allege some facts some foundation for obtaining that search warrant so in the supreme court in two cases now says that there should be a similar standard before a plaintiff can begin the process of searching somebody through their documents and their depositions and questioning their family members and friends and employees or whoever the the people that may have discoverable evidence in a matter can proceed that they have to allege some facts some foundation for doing so seems to me to be very reasonable and h r forty one fifteen the open access to courts act is an economic stimulus package for trial lawyers this legislation removes any certainty that currently exists with regard to the legal standard for determining whether a complaints allegations are sufficient to survive a motion to dismiss incredibly this legislation literally states that a court shall not dismiss a complaint when a judge believes the facts alleged do not show the claims to be plausible similarly  judge may not dismiss a claim when he believes that the facts are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged this would overturn federal rules and decades of precedent governing pleading standards the confusion created by this legislation would cause a huge flood of claims filed by plaintiffs because now rather than presenting a factual pleading that shows some plausible way the defendant could be liable plaintiffs need only a wild allegation and then enjoy access to discovery to try to prove their theory the bill's literal text binds the hands of judges from throwing cases out that are blatantly frivolous the result is that defendants of all stripes will be forced to open up their wallets to foot the bill for discovery costs and attorneys fees to defend even the most ridiculous claims in addition the bill would overturn any standards that congress has previously passed relating to the required substance of complaints the text explains that the provisions of h r forty one fifteen would trump everything other than acts of congress passed after the effective date of the bill america small businesses are hurting they are not receiving capital from banks because banks are being forced to invest in the most risk averse assets like treasury securities which happen to fund the debt accumulated from big government spending they are facing uncertainty about massive new taxes on energy and health care as well as penalties for those businesses that cannot afford to comply with the new regulations in these areas and now we're going to eliminate the very standards that protect them from extremely expensive frivolous lawsuits the clear message seems to be that congress does not want the small businesses to succeed or to create new jobs mr chairman is getting close to christmas but american citizens and businesses cannot afford to pay for the gifts this bill gives to the trial lawyers this year indeed is the gift that keeps on giving  i think the gentleman for his statement and without objection other members opening statements will be included in the record now pleased to introduce our witness panel one  representative jared natalie the distinguished representative from the eighth district of new your representative district includes parts of manhattan is government officials who violate people's rights to poison the drinking water or employers when discrimination often evidence of wrongdoing is in the hands of the defendants and the facts necessary to prove a valid claim can only be law at the university of washington school of law where he is an expert in employment discrimination law equal protection and us government between two thousand and one and two thousand and nine it was directly involved in defending attorney general ashcroft and f b i director robert mueller he practices all facets of antitrust law including litigation mergers and acquisitions council in compliance and public policy mr rubin is the author of warmly and it children which was recently presented to the american antitrust institute welcome mr rubin and last but certainly not least we'll hear from professor joshua davis professor davis is the director of the center for law and ethics at the university of san francisco's school of law he also proceed with your statement decisions in these cases particularly present a serious obstacle to the enforcement of federal laws which forbid actions because they are the result of an unlawful purpose civil rights cases today involving claims of unlawful but secret motive it makes those cases much more difficult to pursue it requires that the plaintiff have an author evidence before the lawsuit starts to convince the judge that his or her claims are plausible mr coble raised the question carson a couple raise the question of whether that might be consistent with laws going back many  year the many years that i've been handling these cases in court i've set out in a you know in my written statement a number of lower court decisions i think rectally describing what the new set of standards the standards  new and i could provide you with a number of others a congressman a good lady expressed a concern and i think was entirely legitimate question about what the consequences of this bill would be and i think it's always appropriate for congress to be concerned about that but the legal regime that the bill would establish is the legal regime that's been in place for four decades we've got years of experience with it and it just hasn't had the kind of concerns that have been expressed  difficult to meet the standard those intent standard isn't limited to a point of nation cases it also applies to retaliation and whistleblower statutes there are many and a retaliation vision's in federal discrimination laws but is there present in many other laws such as sarbanes oxley and constitutional claims involving retaliate of involving free speech or also require proof of  motive what we will be reliably left with as viable claims are going to be primarily claims involving fairly inept discriminators people who blurred out their motives or do a very bad job of covering their defendants have pleadings to the defendants have only objected to that the standard the defendant asked to be applied to defendant pleading notice pleading and i think they're right but i think sauce for the goose should be sauce for the gander but reasons i believe that it should not as explained in my written testimony calmly and it all are consistent with decades of prior precedent in essence those cases hold that conclus and implausible claims should not proceed to discovery that conclusion follows from settled principles of black letter law that courts even on a motion to dismiss are not bound to accept conclusory allegations or to draw on reasonable inferences from the specific allegations actually made and also that discovery is not appropriate for fishing expeditions dozens if not hundreds of cases support those basic propositions one way and it will also protect government officials from being subjected to baseless litigation and the threat of personal liability simply for doing their jobs those cases reinforce the doctrine of qualified immunity which protects government officials from burdens of pretrial civil discovery described by the supreme court as peculiar disruptive of effective government such disruption is most apparent where as in the ball case itself the litigation is conducted against high ranking officials and involves conduct undertaken during a war or other national security emergency imagine the paralyzing effect if any of the thousands of detainees currently held abroad by our military could seek damages and discovery from the secretary of defense merely by alleging in a complaint that the detention was motivated by religious animus in which the secretary was complicit that astounding result is exactly what it calls for close overruling that decision would in the words of second circuit judge to promise provide a blueprint for terrorists and others to sue those government officials called upon to prosecute t ongoing wars abroad and to defend the nation at home in a less dramatic contexts as well bombay and it ball prevent protect defendants from being unfairly subjected to the burdens of discovery in cases likely devoid of merit that is no small consideration discovery is almost always expensive and electronic discovery costs alone can easily run into the millions of dollars in complex cases defendants cannot recover their discovery costs even if the plaintiff's case turns out to be meritless so if weak cases are routinely allowed to proceed to according to data compiled by the civil rules committee of the judicial conference data that encompasses hundreds of thousands of cases filed between january two thousand and seven and september two thousand  it all has had at most a negligible impact on how the federal courts adjudicate motions to dismiss more over eight hundred fifty page memorandum prepared for the committee after exhaustively reviewing dozens of lower court opinions that discuss strongly in a ball concluded that overall the case law does not appear to indicate a major change in the standards used to evaluate complaints judge mar kravitz who chairs the committee likewise has concluded that courts are taking a nuanced view of twamley in a ball and that neither decision has proven to be a blockbuster individual decisions confirmed that in the words of the seventh circuit twamley in a ball preserve a liberal notice pleading regime in some conclusory and implausible claims have always been subject to dismissal on the pleadings congress should not enact what would be a wrenching departure from that fundamental and critically important principle thank you thank you mr cutts is i think it's appropriate now the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible other words if the if the plaintiff's claim is plausible that is not a basis for dismissing the case this in my opinion would be a radical change in the standards that are set in our courts not the other way around so i'll start with you professor snapper and you're welcome to respond to that but this language is stunning no set of facts that you can allege anything and get into court i mean we talked here about how in fact davis cited that one of the reasons why we can argue about the statistics is that a lot of people may not have filed cases because they couldn't formulation which is that a court must accept unwarranted and unreasonable inferences from the facts to me that's just crazy and think about how it would play out people who may be connected to the terrorists and one of those guys wants to say well i was detained because of my religion and the attorney general was not acting to protect the country but if you allow that to go forward you have a blueprint a blueprint for people to bring politically motivated against cabinet officers for doing their job and making very tough calls have you have a case no set of facts standard has never been taken literally or unfortunately provided conflicting guidepost or no set of facts language in connally has never been taken literally or owes plaintiff a certain sum literal compliance with connally could consist simply of giving names of the plaintiff in the defendant and asking for a judgment i mean so i don't you know we're talking about statistics here i don't think you can simply say that you ran a search on no set of  want people to be able to get into court and they're not going to be able to allege in their plaintiffs a full set of facts upon which they base their claim because they don't know the full set of facts we want to get to discovery but we have to have some kind of standard other than no set of facts to get into court otherwise we're going to an explosion of litigation in this day of the preservation of information e mails and so on the amount of and the