In Bell Atlantic Corp. v. Twombly, the Supreme Court adopted a new standard of factual particularity a plaintiff must meet to satisfy the requirement of Federal Rule of Civil Procedure 8(a)(2) that a complaint plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” In Ashcroft v. Iqbal, the Court made clear that the Twombly pleading standard extended to civil actions seeking redress for deprivation of constitutional rights in particular, and universally to all Complaints filed in federal court. Commentators have debated whether after Iqbal, victims of constitutional wrongdoing will be able to survive a 12(b)(6) motion to dismiss where the government and its officials exclusively harbor knowledge of the facts that animated the deprivation. Where constitutionality turns on the government’s motive or justification for its actions, how can the plaintiff assert factual allegations sufficient to “nudge [his] claims across the line from conceivable to plausible?” A second, less-discussed aspect of Iqbal is not new at all. Rather, Iqbal is but the latest instance in a long line of cases in which the Supreme Court, acting sua sponte, legislates a doctrine freeing government and its officials from accountability for proven violations of the Constitution. The Iqbal Court held that a supervisory official who is aware of, and deliberately indifferent to, the unconstitutional conduct of subordinates is not liable for damages caused by the deprivation. Rather, plaintiff must prove the supervisor independently violated the Constitution. Notably, Attorney General Ashcroft and FBI Director Mueller never argued before either the district court or court of appeals that plaintiff must prove a heightened level of culpability to establish their liability for infringements of constitutional rights physically inflicted by public employees under their command. Likewise, Ashcroft and Mueller did not ask the Supreme Court to revise the law of supervisory liability by elevating the requirements of plaintiff’s prima facie case. The Iqbal Court’s abandonment of well-entrenched limits on judicial authority in order to unilaterally shelter the government from accountability to persons deprived of their constitutional rights is not an aberration. This article will examine the Court’s penchant, without the benefit of the views of the lower courts and advocates, to excuse government entities and public officials from paying damages for injuries caused by their constitutional wrongdoing. As a result of the Court’s judicial legislation, the innocent citizen is often left to bear the losses caused by the government’s invasion of the most fundamental rights, those secured by the United States Constitution.
Gary S. Gildin, The Supreme Court's Legislative Agenda to Free Government from Accountability for Constitutional Deprivations, 114 Penn St. L. Rev. 1333 (2010).