A 5-4 decision this past May by the United States Supreme Court greatly restricts the ability of plaintiffs to sue high-ranking government officials for Constitutional violations, including for unconstitutional discrimination. The decision contained two key holdings. The first was that government officials cannot be found to have “supervisory liability” absent actual misconduct by that government official in a constitutional discrimination case. Additionally, the Court applied its earlier decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) to find that the “plausibility” requirement contained in Twombly acts as a bar to claims based on allegations a court believes are conclusory, and making clear that Twombly extends outside of the antitrust context.
The plaintiff Iqbal was arrested in the wake of the September 11, 2001 terror attacks on fraud charges and placed in a maximum security prison after he was designated a person “of high interest.” Iqbal was eventually deported to Pakistan after serving a period of imprisonment. He then filed a Bivens suit against several dozen current and former federal officials, including former Attorney General John Ashcroft and former FBI Director Robert Mueller, as well as 19 unnamed corrections officers. The suit alleged a violation of his constitutional rights because he was subjected to severe physical mistreatment during his imprisonment in the maximum security facility; he specifically alleged that this abuse was also the result of unconstitutional discriminatory conduct due to his “religion, race and/or national origin and for no legitimate penological interest.” The charges against Ashcroft and Mueller were based on their purported roles as the “principal architect” of the policy leading to Iqbal’s abuse or as “instrumental in adoption promulgation, and implementation” of the policy.
Ashcroft and Mueller moved to dismiss the claims against them, arguing that they were entitled to a qualified immunity defense because the complaint failed to establish their own involvement in clearly established unconstitutional. The District Court denied the motion, and Ashcroft and Mueller filed interlocutory appeals. The Second Circuit Court of Appeals found that, despite the decision in Twombly, Iqbal had adequately pleaded the facts in his complaint to allege Ashcroft and Mueller’s personal involvement in discriminatory decisions, and that the complaint’s context did not require the plaintiff to “amplify a claim with some factual allegations . . . to render the claim plausible.”
Writing for the five-justice majority, Justice Kennedy reversed the Second Circuit. Justice Kennedy first analyzed the question of whether qualified immunity is restricted such that high-ranking government officials can be liable for “knowledge and acquiescence in their subordinates’ use of discriminatory criteria to make classification decisions…” Justice Kennedy found that government official may not be held so liable, holding that to do so would be inconsistent with the long-recognized concept that government officials may not be held personally liable for the actions of subordinates under a vicarious liability theory. Specifically, Justice Kennedy found that a supervisory government official must do more than acquiesce to a subordinate’s unconstitutional discrimination in order to be found personally liable, but instead must have an active purpose to unconstitutionally discriminate against the plaintiff.
Analyzing the sufficiency of Iqbal’s pleadings in light of the Court’s finding that government officials must have an active purpose of engaging in unconstitutional discrimination to be held personally liable for the actions of their subordinates, Justice Kennedy ruled that Iqbal had failed to do so under Twombly. Justice Kennedy found that Twombly requires that courts analyzing the sufficiency of a complaint take a two-pronged approach. First, a court must disregard the legal conclusions contained within the complaint, including any “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Second, a court must analyze whether the complaint states a plausible claim for relief, which is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Where the factual allegations in a complaint are consistent with both illegal and legal behavior, then the complaint cannot state a plausible claim for relief.
Justice Kennedy specifically found that Iqbal’s allegations that Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed to subject him to harsh conditions of confinement…solely on account of his religion, race, and/or national origin” was no more than a “formulaic recitation of the elements of a constitutional discrimination claim,” and were thus conclusory statements rather than factual allegations. Justice Kennedy proceeded to analyze whether allegations that, in the aftermath of September 11, Mueller and Ashcroft directed the arrest and detention of thousands of Arab Muslim men and ordered them held in “highly restrictive conditions of confinement” were sufficient to establish discriminatory intent by Mueller and Ashcroft. Justice Kennedy found that these allegations were insufficient, arguing that a non-discriminatory alternative explanation for these arrests not only existed, but was more likely, noting that “it should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims…” As such, Justice Kennedy ruled that the allegation of discrimination was not plausible given the more likely non-discriminatory explanation. In short, Justice Kennedy found that, although the complaint may have been sufficient to allege constitutional violations by lower-ranking defendants, it failed to provide facts sufficient to allege unconstitutional discrimination in the promulgation of the policies.
Finally, Justice Kennedy responded to several counterarguments raised by Iqbal. First, Justice Kennedy rejected an argument that Twombly is limited to an antitrust context, thus making clear that Twombly extends to all federal civil actions. Second, Justice Kennedy made clear that the Court would not relax the pleading rules where it would be possible for a district court to restrict discovery so as to preserve the defendants’ defense of qualified immunity. Finally, and most significantly, Justice Kennedy found that despite the fact that plaintiffs are typically allowed to allege intent only “generally,” courts are not to credit a general allegation of intent “without reference to its factual context.” A general allegation of intent, it would seem, will not suffice where the factual allegations in the complaint can just as easily be explained by a non-discriminatory motive.
