Tuesday, May 19, 2009
Iqbal III: The Death of Supervisory Liability
Not content only to wreak procedural havoc, Justice Kennedy also decided to wreak substantive havoc on the Bivens doctrine (a doctrine that is being slowly killed anyway). Michael Dorf discusses the dicta that leaves open the possibility that Bivens is not available for Free Exercise claims, a point the Court ultimately simply assumes arguendo.
More problematic is that the Court seemingly eliminates supervisory liability (the "term 'supervisory liability' is a misnomer"). That is, at least in Bivens claims and/or claims involving constitutional rights that require intent. Worse, the Court did this despite the issue not being briefed or argued and despite the defendants' stipulation as to the appropriate standard for supervisory liability.
It is unquestioned that there is no respondeat superior liability as to entities or supervisory officials under § 1983 or Bivens (expressly defined in Iqbal as its federal analog); a supervisory officer only can be liable for his own misconduct. But all of the courts of appeals prior to today had recognized (although with varying language and rigidity) that supervisory liability could attach where there was underlying unconstitutional conduct on the ground (whatever the state of mind required for that underlying conduct) and a supervisory official knew about the misconduct and acquiesced in it or condoned it or failed, with deliberate indifference, to take steps to correct or prevent the misconduct.
And this is what Iqbal attempted to plead: That he was detained and mistreated in violation of his First, Fifth, and Eighth Amendment rights by federal officers on the ground and that Ashcroft and Mueller either a) created or implemented the policies pursuant to which they were mistreated or b) knew about the mistreatment. And Mueller and Ashcroft both conceded that they could be liable if they actually knew about underlying constitutional violations and took no steps to halt or correct the misconduct.
Instead, noting that the rights in play (Free Exercise and equal protection) required discriminatory purpose--that the official acted in some way "because of" (rather than "in spite of") the particular trait--the majority insisted that a supervisory official also must have acted with such a discriminatory purpose. The "respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin." So mere knowledge of constitutional violations on the ground and failure to respond to them is not enough; the officer must have failed to respond precisely because the victim was an Arab-Muslim.
Worse, the substantive move was arguably procedurally unnecessary, a point Justice Souter drove home in his dissent. The complaint included allegations (which the plaintiff obviously believed would be legally on point) of knowledge/acquiescence in unconstitutional conduct on the ground, but the Court rejected these allegations as insufficient bare conclusory allegations. The Court thus could have rejected the supervisory-liability claims as insufficiently pled under the expected knowledge/acquiescence standard, without having to change the substantive standard as it did. Put differently, the Court could simply have rejected the supervisory claims as factually insufficient, rather than changing the legal standard to render them legally insufficient. Not to mention that the issue was not raised or briefed.
It will be interesting to see how this issue plays out in the lower courts. The Court spent a lot of time talking about Bivens, so perhaps lower courts will say that the rules for supervisory liability will be different for § 1983 than for Bivens. Alternatively, perhaps (although I doubt there is any principled basis for doing this) lower courts will say that the rules are different for high-ranking federal officials (such as the AG or head of the FBI) than for low- and mid-level supervisory officers who are more aware of what goes on on the ground. Another possibility is that this discussion of supervisory liability applies where the underlying violation is of an intent-based right (such as the First and Fifth Amendments), but knowledge might be sufficient where the underlying violation is of a different right lacking an intent requirement (such as the Fourth or Eighth Amendments). But, of course, the straight-forward reading is there is no longer any such thing as supervisory liability in constitutional cases.
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My apologies if someone already pointed this out and I missed it, but one additional difficulty with what the Court has done is that now every case with an official immunity defense is likely to have to make two trips to the court of appeals unless it is thrown out by the district court. First, there will be an appeal from the denial of the motion to dismiss, then if the decision is affirmed, there will be another appeal at the denial of summary judgment. Plaintiffs will need a huge war chest to make it through all that litigation just to get to trial.
Posted by: Mark Weber | May 19, 2009 11:10:20 AM
This is a great point, one I will touch on in a later post on the appealability analysis.
Posted by: Howard Wasserman | May 19, 2009 11:12:13 AM
"Worse, the substantive move was arguably procedurally unnecessary, a point Justice Souter drove home in his dissent."
Of course, another way to read the opinion is that the procedural move was procedurally unnecessary -- that the Court's decision is based more on its view of supervisory liability and less on its view of the sufficiency of the pleading.
To be sure, the complaint can be read as alleging intentional discrimination on the part of the officials, but the more natural reading is that it was alleging knowledge of and deliberate indifference to intentional discrimination.
Posted by: AF | May 19, 2009 12:38:23 PM
It's amazing to me how the Justices miss the forest for the trees. Everyone knows that Ashcroft -- or any lower ranked official -- will be indemnified if liable. So individual liability is just a surrogate for the unavailability of entity liability. Yet the Court seems to believe its own fiction that the individual is actually paying out of pocket, and then insists that we capture only the responsible individual officer. It converts Bivens and Section 1983 into enormous shell games -- and as you point out in this excellent post, Howard -- the shells just got bigger, the games even more elaborate.
Posted by: Vladimir | May 19, 2009 2:55:17 PM
As a practitioner, I've been trying to figure out what Iqbal says about supervisory liability for the last 24 hours.
First, it's tough to argue that the standard is different for 1983 cases than Bivens actions. Just before Section IV the Court lays out the new standard: "In a §1983 suit or a Bivens action—where masters do not answer for the torts of their servants—the term “supervisory liability” is a misnomer. Absent vicarious liability, each Government official, his or her title notwithstanding, is only liable for his or her own misconduct." The majority doesn't think there's a different standard for Bivens actions than in 1983 actions.
Second, there does seem to be some support for an argument that the standard differs based on the cause of action. As Prof. Wasserman notes, the Court spends a lot of time talking about intent (specifically, here, discriminatory intent). And the Eighth Amendment is a good example of a case where a different standard makes sense: if the standard for an Eighth Amendment violation is "deliberate indifference," why must a supervisor need to do anything more to be liable? Deliberate indifference is, in itself, an "action" by the supervisor that could impose liability.
But I think many courts will read the opinion broadly and a lot of claims against supervisors are going to fail over the next few years.
Posted by: Donald | May 19, 2009 4:07:43 PM
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