The U.S. Supreme Court called into question the continuing existence of supervisory liability in Ashcroft v. Iqbal, 556 U.S. 662 (2009). There, a Pakistani Muslim filed suit against federal officials based on his detention following the September 11, 2001, attacks. The Court’s decision could be read to eliminate supervisory liability in the federal analog to a section 1983 case, an action under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971), for reasons equally applicable to section 1983 claims.
The Court rejected the plaintiff’s claim that ‘“knowledge and acquiescence [by supervisors] in their subordinates’ use of discriminatory criteria to make classification decisions among detainees’” was sufficient to find that the supervisors had committed a constitutional violation and concluded that “the term ‘supervisory liability’ is a misnomer” in a section 1983 suit or a Bivens suit. Iqbal, 556 U.S. at 677. Under Iqbal, the constitutional claim was “invidious discrimination in contravention of the First and Fifth Amendments,” which require “discriminatory purpose,” and the supervisor could not be liable unless the supervisor “under[took] a course of action ‘“because of”’ not merely ‘“in spite of”’ [the action’s] adverse effects upon an identifiable group.’” Id. at 676 (further citation omitted).