During Supreme Court arguments Wednesday in a case involving claims against high-ranking government officials over post-Sept. 11 detention practices, discussion frequently turned to an unusual hypothetical scenario posed by Justice Stephen Breyer: a lawsuit over a mouse found in a bottle of Coca-Cola. Though Chief Justice John Roberts Jr. at one point called the hypothetical "by its nature particularly absurd," he and the other justices who adopted it seemed to find it quite instructive.
For complete coverage of Wednesday's arguments in Ashcroft v. Iqbal, see Tony Mauro's Legal Times story, "Top Bush Officials Unlikely to Face Personal Liability for 9/11 Detentions."
In Iqubal, Pakistani national Javaid Iqbal and other individuals arrested following Sept. 11 have brought claims against Federal Bureau of Investigation Director Robert Mueller and former Attorney General John Ashcroft, alleging mistreatment on the basis of race and religion. The Court is considering issues of qualified immunity and pleading standards in the case.
Breyer first introduced the mouse-in-Coke-bottle hypothetical when asking Solicitor General Gregory G. Garre a civil procedure question aimed at whether lawyers can protect busy and important clients -- such as high-level government officials -- from having to participate in discovery related to far-fetched claims filed against them.
"Jones sues the president of Coca-Cola. His claim is the president personally put a mouse in the bottle. Now, he has no reason for thinking that. Then his lawyer says: 'OK, I'm now going to take seven depositions of the president of Coca-Cola.' The president of Coca-Cola says: 'You know, I don't have time for this; there is no basis ... I don't want to go and spend the time to answer questions,'" Breyer said.
Where in the Federal Rules of Civil Procedure, Breyer asked, does it state that a lawyer can go to a judge and say "my client has nothing to do with this, there is no basis for it; don't make him answer the depositions, please."
The solicitor general argued that Rule 8, as interpreted by the Court in its 2007 case Bell Atlantic v. Twombly (pdf), establishes that a plaintiff has "an obligation to show a plausible entitlement to relief."
But Justice David Souter drew a distinction between the mouse hypothetical -- "a totally bizarre allegation that nobody in the world could take seriously" -- and a claim that Ashcroft and Mueller were directly involved in the challenged detention policies, which, he said, "does not have that kind of bizarre character to it and, I think, would not run afoul of the plausibility standard."
When Alexander Reinert, arguing on behalf of Iqbal, took the stand, Roberts reintroduced the hypothetical.
"Do you agree that -- just to follow up on Justice Breyer's questioning of General Garre, do you believe that the same pleading standards apply in the action against the president of Coca-Cola as apply to the actions of the attorney general and the director of the FBI on the evening of Sept. 11, 2001?" Roberts asked.
"Certainly, Your Honor, I think the same pleading standards apply," Reinert said.
When Justice John Paul Stevens took up the hypothetical, he upped the ante
-- to a larger and more menacing rodent, one even less likely to fit into a bottle of Coke. (The justices discussed only Coke bottles, making no mention of the more modern soda can).
The more probable, and plausible, allegation in such a case, Stevens said, would be "that the Coca-Cola Co. has adopted sloppy procedures in its manufacturing lines, and the president is responsible for those procedures and that's why the bottles are filled with rats."
"I'm not suggesting that Coca-Cola really does that," Stevens assured the courtroom.
The justices discussed other variations of the hypothetical. What if the suit was filed against the local manager of the Coca-Cola distribution plant instead of the company president? Or if the suit was over a price fixing scheme instead of a mouse in a bottle?
At one point, Breyer gave the Coca-Cola Co. a break and referred to a company in the headlines of late, saying, "[T]he Attorney General is very busy and what he does is very important. The president of Coca-Cola is very busy. The president of General Motors is very busy ... very busy at the moment," Breyer said, to laughter from the audience.
It's not clear what sparked Breyer's idea for the hypothetical, but author Jan Harold Brunvand, in his 2001 book "Too Good to Be True: The Colossal Book of Urban Legends," includes a section titled "The Mouse in the Coke," discussing this piece of "Cokelore," as he calls it. According to Brunvad, lawsuits have indeed been brought based on this unfortunate scenario, but none very recently. In any case, none have made it to the Supreme Court.
Laurel Newby is a senior editor with Law.com.