13

‐ 981 (L)

Turkmen, et al. v. Hasty, et al.

UNITED STATES COURT OF APPEALS 1

FOR THE SECOND CIRCUIT 2

3

4

August Term, 2013 5

6

(Argued: May 1, 2014 Decided: June 17, 2015) 7

8

Docket Nos. 13

‐ 981, 13

‐ 999, 13

‐ 1002, 13

‐ 1003, 13

‐ 1662 9

10

11

IBRAHIM TURKMEN, AKHIL SACHDEVA, AHMER IQBAL ABBASI, 12

ANSER MEHMOOD, BENAMAR BENATTA, AHMED KHALIFA, 13

SAEED HAMMOUDA, PURNA BAJRACHARYA, on behalf of themselves and 14

all others similarly situated, 15

16

Plaintiffs

‐ Appellees

‐ Cross

‐ Appellants, 17

18

‐ v. ‐ 19

20

DENNIS HASTY, former Warden of the Metropolitan Detention Center, 21

MICHAEL ZENK, former Warden of the Metropolitan Detention Center, 22

JAMES SHERMAN, former Metropolitan Detention Center Associate 23

Warden for Custody, 24

25

Defendants

‐ Appellants

, 26

27

JOHN ASHCROFT, former Attorney General of the United States, 28

ROBERT MUELLER, former Director, Federal Bureau of Investigation, 29

JAMES W. ZIGLAR, former Commissioner, Immigration and 30

Naturalization Service, 31

32

Defendants

‐ Cross

‐ Appellees

, 33

342 SALVATORE LOPRESTI, former Metropolitan Detention Center Captain, 1

JOSEPH CUCITI, former Metropolitan Detention Center Lieutenant, 2

3

Defendants

. * 4

5

6

Before: 7

P OOLER

, R AGGI

, AND W ESLEY

, Circuit Judges

. 8

9

10

Appeal from a January 15, 2013 Memorandum and Order of the United States 11

District Court for the Eastern District of New York (Gleeson, J.) granting in part 12

and denying in part Defendants’ motions to dismiss. Cross

‐ appeal from an April 13

10, 2013 Judgment of the United States District Court for the Eastern District of 14

New York (Gleeson, J

. ), which was entered pursuant to Rule 54(b) of the Federal 15

Rules of Civil Procedure on April 11, 2013, granting certain Defendants’ motions 16

to dismiss. We AFFIRM in part and REVERSE in part. Judge Raggi concurs in 17

part in the judgment and dissents in part in a separate opinion. 18

19

R ACHEL A. M EEROPOL

, Center for Constitutional Rights, 20

New York, NY (Michael Winger, Sunita Patel, Baher A. 21

Azmy, Center for Constitutional Rights, New York, NY; 22

Nancy L. Kestenbaum, Jennifer L. Robbins, Joanne Sum

‐ 23

Ping, Covington & Burling LLP, New York, NY, on the 24

brief ), for Plaintiffs

‐ Appellees

‐ Cross

‐ Appellants

. 25

26

H UGH D. S ANDLER

, Crowell & Moring LLP, New York, 27

NY (Shari Ross Lahlou, Crowell & Moring LLP, 28

Washington, D.C., on the brief ), for Defendant

‐ Appellant 29

Dennis Hasty

. 30

31

J OSHUA C. K LEIN (Allan N. Taffet, Kirk L. Brett, Megan 32

E. Uhle, on the brief ), Duval & Stachenfeld LLP, New 33

York, NY, for Defendant

‐ Appellant Michael Zenk

. 34

* The Clerk of the Court is directed to amend the caption as set forth above.3 1

J EFFREY A. L AMKEN

, MoloLamken LLP, Washington, 2

D.C. (Martin V. Totaro, MoloLamken LLP, Washington, 3

D.C.; Debra L. Roth, Julia H. Perkins, Shaw, Bransford 4

& Roth P.C., Washington, D.C., on the brief ), for 5

Defendant

‐ Appellant James Sherman

. 6

7

H. T HOMAS B YRON III, Appellate Attorney, Civil 8

Division (Stuart F. Delery, Assistant Attorney General, 9

Ronald C. Machen Jr., United States Attorney, Dana 10

Boente, United States Attorney, Barbara L. Herwig, 11

Appellate Attorney, Civil Division, on the brief ), U.S. 12

Department of Justice, Washington, D.C., for Defendants

‐ 13

Cross

‐ Appellees John Ashcroft and Robert Mueller

. 14

15

W ILLIAM A LDEN M C D ANIEL

, J R

., Ballard Spahr LLP, 16

Baltimore, MD, for Defendant

‐ Cross

‐ Appellee James W. 17

Ziglar

. 18

19

Trina Realmuto, National Immigration Project of the 20

National Lawyers Guild, Boston, MA; Mary Kenney, 21

American Immigration Council, Washington, D.C., 22

amici curiae in support of Plaintiffs

‐ Appellees

‐ Cross

‐ 23

Appellants

. 24

25

26

P OOLER AND W ESLEY

, Circuit Judges : 27

On September 11, 2001, “19 Arab Muslim hijackers who counted 28

themselves members in good standing of al Qaeda” hijacked four airplanes and 29

killed over 3,000 people on American soil. Ashcroft v. Iqbal ( Iqbal ), 556 U.S. 662, 30

682 (2009). This case raises a difficult and delicate set of legal issues concerning 314 individuals who were caught up in the post

‐ 9/11 investigation even though they 1

were unquestionably never involved in terrorist activity. Plaintiffs are eight 2

male, “out

‐ of

‐ status” aliens 1 who were arrested on immigration charges and 3

detained following the 9/11 attacks. Plaintiffs were held at the Metropolitan 4

Detention Center (the “MDC”) in Brooklyn, New York, or the Passaic County Jail 5

(“Passaic”) in Paterson, New Jersey; their individual detentions generally ranged 6

from approximately three to eight months. 7

The operative complaint, a putative class action, asserts various claims 8

against former Attorney General John Ashcroft; former Director of the Federal 9

Bureau of Investigation (the “FBI”) Robert Mueller; former Commissioner of the 10

Immigration and Naturalization Service (the “INS”) James Ziglar; former MDC 11

Warden Dennis Hasty; former MDC Warden Michael Zenk; and former MDC 12

Associate Warden James Sherman. 2 All claims arise out of allegedly 13

1 We use the term “out

‐ of

‐ status” alien to mean one who has either (1) entered the

United States illegally and is deportable if apprehended, or (2) entered the United States

legally but who has fallen “out of status” by violating the rules or guidelines for his

nonimmigrant status (often by overstaying his visa) in the United States and is

deportable.

2 For ease of reference, we refer to Ashcroft, Mueller, and Ziglar collectively as the

“Department of Justice (‘DOJ’) Defendants,” and Hasty, Sherman, and Zenk collectively

as the “MDC Defendants.” The operative complaint also alleges claims against MDC

officials Joseph Cuciti and Salvatore Lopresti. Cuciti did not appeal the district court’s

decision, and Lopresti filed a notice of appeal but did not timely pay the filing fee or file5 discriminatory and punitive treatment Plaintiffs suffered while confined at the 1

MDC or Passaic. 2

BACKGROUND 3

I. Procedural History 3 4

Plaintiffs initiated this action over thirteen years ago on April 17, 2002. 5

Over the following two and one

‐ half years, Plaintiffs amended their complaint 6

three times. In June 2006, following a series of motions to dismiss, the district 7

court dismissed Plaintiffs’ unlawful

‐ length

‐ of

‐ detention claims but permitted to 8

proceed, inter alia

, the substantive due process and equal protection claims 9

challenging the conditions of confinement at the MDC. See Turkmen v. Ashcroft 10

( Turkmen I ), No. 02 CV 2307(JG), 2006 WL 1662663, at *33–36, 40–41 (E.D.N.Y. 11

June 14, 2006), aff ʹ d in part, vacated in part

, Turkmen v. Ashcroft ( Turkmen II ), 589 12

F.3d 542 (2d Cir. 2009) (per curiam), remanded to Turkmen III

, 915 F. Supp. 2d at 13

314. Plaintiffs and Defendants appealed various aspects of that ruling. 14

Two significant events occurred while the appeal was pending. First, six 15

of the original eight named Plaintiffs at that time withdrew or settled their claims 16

a brief. Lopresti’s appeal was dismissed pursuant to Federal Rule of Appellate

Procedure 31(c). Thus, we do not address the claims against Cuciti and Lopresti.

3 For a more comprehensive review of this case’s procedural history, see Turkmen v.

Ashcroft ( Turkmen III ), 915 F. Supp. 2d 314, 331

− 33 (E.D.N.Y. 2013).6 against the government. See Turkmen II

, 589 F.3d at 544 n.1, 545. This left only 1

Ibrahim Turkmen and Akhil Sachdeva, both of whom were detained at Passaic, 2

as opposed to the MDC. Second, the Supreme Court issued Iqbal

, 556 U.S. at 662, 3

which altered the pleading regime governing Plaintiffs’ claims. In light of these 4

events and the remaining Plaintiffs’ stated desire to replead claims unique to the 5

settling Plaintiffs, this Court affirmed the dismissal of the length of detention 6

claims but vacated and remanded with respect to the conditions of confinement 7

claims. See Turkmen II

, 589 F.3d at 546

− 47, 549

− 50. 8

On remand, the district court permitted Plaintiffs to amend their complaint 9

and granted leave for six additional Plaintiffs, all of whom had been held at the 10

MDC, to intervene. The eight current named Plaintiffs are of Middle Eastern, 11

North African, or South Asian origin; six of them are Muslim, one is Hindu, and 12

one is Buddhist. The Fourth Amended Complaint (the “Complaint”), the 13

operative complaint in this case, restates Plaintiffs’ putative class claims on 14

behalf of the “9/11 detainees,” a class of similarly situated non

‐ citizens who are 157 Arab or Muslim, or were perceived by Defendants as Arab or Muslim, and were 1

arrested and detained in response to the 9/11 attacks. 4 2

The Complaint dramatically winnowed the relevant claims and 3

defendants; it alleges seven claims against eight defendants. The first six claims, 4

all brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of 5

Narcotics

, 403 U.S. 388 (1971), are: (1) a conditions of confinement claim under the 6

Due Process Clause; (2) an equal protection claim alleging that Defendants 7

subjected Plaintiffs to the challenged conditions because of their, or their 8

perceived, race, religion, ethnicity, and/or national origin; (3) a claim arising 9

under the Free Exercise Clause; (4) and (5) two claims generally alleging 10

interference with counsel; and (6) a claim under the Fourth and Fifth 11

Amendments alleging unreasonable and punitive strip searches. The seventh 12

and final claim alleges a conspiracy under 42 U.S.C. § 1985(3). The DOJ and 13

MDC Defendants moved to dismiss the Complaint for failure to state a claim, on 14

4 Benamar Benatta was originally detained by Canadian authorities on September 5,

2001, after crossing the Canadian border with false documentation. Following the

September 11 attacks, Benatta was transported back to the United States and detained in

the challenged conditions of confinement and pursuant to the post

‐ 9/11 investigation;

therefore, we call him a “9/11 detainee.”8 qualified immunity grounds, and, in some instances, based on a theory that 1

Bivens relief did not extend to the claim at issue. 2

II. The OIG Reports 3

Plaintiffs supplemented the factual allegations in their amended 4

complaints with information gleaned from two reports by the Office of the 5

Inspector General of the United States Department of Justice (the “OIG 6

reports”) 5 that documented the federal law enforcement response to 9/11 and 7

conditions at the MDC and Passaic. 8

The OIG reports, which the Complaint “incorporate[s] by reference except 9

where contradicted by the allegations of [the Complaint],” Compl. ¶ 3 n.1, see also 10

id. ¶ 5 n.2, play a significant role in this case. 6 Primarily, the OIG reports provide 11

5 There are two OIG reports. The first OIG report, published in June 2003, covers

multiple aspects of law enforcement’s response to 9/11. See U.S. Dep’t of Justice, Office

of the Inspector General, The September 11 Detainees: A Review of the Treatment of

Aliens Held on Immigration Charges in Connection with the Investigation of the

September 11 Attacks (April 2003) (the “OIG Report”), available at

http://www.justice.gov/oig/special/0306/full.pdf. The second OIG report, published in

December 2003, focuses on abuses at the MDC. See U.S. Dep’t of Justice, Office of the

Inspector General, Supplemental Report on September 11 Detainees’ Allegations of

Abuse at the Metropolitan Detention Center in Brooklyn, New York (Dec. 2003) (the

“Supplemental OIG Report”), available at

http://www.justice.gov/oig/special/0312/final.pdf.

6 Various Defendants challenge the district court’s decision to consider the OIG reports

to the extent that they are not contradicted by the Complaint. Defendants are correct

that a complaint “include[s] any written instrument attached to it as an exhibit or any9 invaluable context for the unprecedented challenges following 9/11 and the 1

various strategies federal agencies employed to confront these challenges. The 2

reports help orient our analysis of the Complaint. 3

III. Plaintiffs’ Allegations 7 4

In the aftermath of the 9/11 attacks, the FBI and other agencies within the 5

DOJ immediately initiated an immense investigation aimed at identifying the 6

9/11 perpetrators and preventing any further attacks. See OIG Report at 1, 11

− 12. 7

PENTTBOM, the Pentagon/Twin Towers Bombings investigation, was initially 8

run out of the FBI’s field offices, but shortly thereafter, Mueller ordered that 9

management of the investigation be switched to the FBI’s Strategic Information 10

statements or documents incorporated in it by reference.” Cortec Indus., Inc. v. Sum

Holding L.P.

, 949 F.2d 42, 47 (2d Cir. 1991); accord DiFolco v. MSNBC Cable L.L.C.

, 622

F.3d 104, 111 (2d Cir. 2010). But their objection misses the point. The district court

accurately explained that at the pleading stage, although we must consider the words

on the page (that is, we cannot disregard the fact that the OIG reports make particular

findings), we need not consider the truth of those words to the extent disputed by

Plaintiffs. See Turkmen III

, 915 F. Supp. 2d at 342 n.14 ( citing DiFolco

, 622 F.3d at 111).

Even were we to view the OIG reports as fully incorporated, reliance on any assertion

of fact requires a credibility assessment that we are fundamentally unsuited to

undertake at the Rule 12(b)(6) stage. And although the OIG reports cannot

determinatively prove or disprove Plaintiffs’ allegations, they remain relevant to our

analysis because they supplement our understanding of the law enforcement response

to 9/11.

7 The allegations set forth herein are drawn from the Complaint and those portions of

the OIG reports incorporated by reference. See supra note 6. We presume the veracity

of Plaintiffs’ well

‐ pleaded allegations. Iqbal

, 556 U.S. at 679.10 and Operations Center (the “SIOC”) at FBI Headquarters in Washington, D.C. 1

Mueller personally directed PENTTBOM from the SIOC and remained in daily 2

contact with FBI field offices. 3

In conjunction with PENTTBOM, the Deputy Attorney General’s Office 4

(the “DAG’s Office”) established the SIOC Working Group to coordinate “efforts 5

among the various components within the [DOJ] that had an investigative 6

interest in[,] or responsibility for[,] the September 11 detainees.” Id

. at 15. 8 The 7

SIOC Working Group included representatives from, among other agencies, the 8

FBI, the INS, and the DAG’s Office. This group met daily—if not multiple times 9

in a single day—in the months following 9/11; its duties included “coordinat[ing] 10

information and evidence sharing among the FBI, INS, and U.S. Attorneys’ 11

offices” and “ensur[ing] that aliens detained as part of the PENTTBOM 12

investigation would not be released until they were cleared by the FBI of 13

involvement with the September 11 attacks or terrorism in general.” Id

. 14

Given that the 9/11 hijackers were all foreign nationals, the DOJ response 15

carried a major immigration law component. See id. at 12. Ashcroft and Mueller 16

developed “a policy whereby any Muslim or Arab man encountered during the 17

8 The SIOC Working Group acquired this name because its initial meetings occurred at

the FBI’s SIOC.11 investigation of a tip received in the 9/11 terrorism investigation

. . . and 1

discovered to be a non

‐ citizen who had violated the terms of his visa, was 2

arrested.” Compl. ¶ 1; see also id. ¶¶ 39–49. Ashcroft also created the related 3

“hold

‐ until

‐ cleared” policy, which mandated that individuals arrested in the 4

wake of 9/11 not be released from “custody until [FBI Headquarters] 5

affirmatively cleared them of terrorist ties.” Id

. ¶ 2; see also OIG Report at 38–39. 6

Within a week of 9/11, the FBI had received approximately 96,000 tips from 7

civilians across the country. These tips varied significantly in quality and 8

reliability. 9 “Mueller [nonetheless] ordered that every one of these tips be 9

investigated, even if they were implausible on their face.” Compl. ¶ 40. 10

Ultimately, 762 detainees were placed on the INS Custody List (the “INS List”) 11

that then made them subject to Ashcroft’s hold

‐ until

‐ cleared policy. 12

In the months following 9/11, the DOJ Defendants “received detailed daily 13

reports of the arrests and detentions.” Id

. ¶ 47. Ashcroft and Mueller also “met 14

9 For instance, Turkmen came to the FBI’s attention when his landlord called the FBI’s

9/11 hotline and reported “that she rented an apartment in her home to several Middle

Eastern men, and she ‘would feel awful if her tenants were involved in terrorism and

she didn’t call.’” Compl. ¶ 251. “The FBI knew that her only basis for suspecting these

men was that they were Middle Eastern; indeed, she reported that they were good

tenants, and paid their rent on time.” Id. Another alien was arrested after the FBI

received a tip that stated that the small grocery store where he worked was overstaffed,

thus arousing the tipster’s suspicions about the “Middle Eastern men” that worked

there. OIG Report at 17.12 regularly with a small group of government officials in Washington, D.C., and 1

mapped out ways to exert maximum pressure on the individuals arrested in 2

connection with the terrorism investigation.” Id. ¶ 61. 10 This small group 3

“discussed and decided upon a strategy to restrict the 9/11 detainees’ ability to 4

contact the outside world and delay their immigration hearings. The group also 5

decided to spread the word among law enforcement personnel that the 9/11 6

detainees were suspected terrorists[]

. . . and that they needed to be encouraged 7

in any way possible to cooperate.” Id

. 8

Plaintiffs, with the exception of Turkmen and Sachdeva, were held at the 9

MDC. Under MDC confinement policy, the 9/11 detainees placed in the MDC 10

were held in the MDC’s Administrative Maximum Special Housing Unit (the 11

“ADMAX SHU”)—“a particularly restrictive type of SHU not found in most 12

[Bureau of Prisons (‘BOP’)] facilities because the normal SHU is usually sufficient 13

10 It is unclear whether this “small group” refers to the SIOC Working Group or a

distinct group involving Ashcroft, Mueller, and other senior Washington, D.C., officials.

One possibility is that Plaintiffs are referring to the small group that consisted of

Ashcroft, Mueller, Michael Chertoff, who was then Assistant Attorney General of the

Criminal Division, and the Deputy Attorney General. See OIG Report at 13. According

to Chertoff, this group discussed the DOJ’s post

‐ 9/11 law enforcement strategy and

policies. Given the makeup of this group and the SIOC Working Group, it is reasonable

to infer that information flowed between them; for instance, Chertoff’s deputy, Alice

Fisher, was placed in charge of immigration issues for the Criminal Division and

personally established the SIOC Working Group.13 for correcting inmate misbehavior and addressing security concerns.” Id. ¶ 76. 1

The confinement policy was created by the MDC Defendants “in consultation 2

with the FBI.” Id

. ¶ 65. 3

Conditions in the ADMAX SHU were severe and began to receive media 4

attention soon after detentions began. See OIG Report at 2, 5. Detainees were: 5

“placed in tiny cells for over 23 hours a day,” Compl. ¶ 5; “strip

‐ searched every 6

time they were removed from or returned to their cell[s],

. . . even when they had 7

no conceivable opportunity to obtain contraband,” id. ¶ 112; provided with 8

“meager and barely edible” food, id. ¶ 128; denied sleep by “bright lights” that 9

were left on in their cells for 24 hours a day, id. ¶ 119, and, “[o]n some occasions, 10

correctional officers walked by every 20 minutes throughout the night, kicked 11

the doors to wake up the detainees, and yelled” highly degrading and offensive 12

comments, id. ¶ 120; constructively denied recreation and exposed to the 13

elements, see id. ¶¶ 122

− 23; “denied access to basic hygiene items like toilet 14

paper, soap, towels, toothpaste, [and] eating utensils,” id. ¶ 130; and prohibited 15

from moving around the unit, using the telephone freely, using the commissary, 16

or accessing MDC handbooks, which explained how to file complaints about 17

mistreatment, see id. ¶¶ 76, 83, 129, 140. 1814 MDC staff also subjected the 9/11 detainees to frequent physical and verbal 1

abuse. The abuse included slamming the 9/11 detainees into walls; bending or 2

twisting their arms, hands, wrists, and fingers; lifting them off the ground by 3

their arms; pulling on their arms and handcuffs; stepping on their leg restraints; 4

restraining them with handcuffs and/or shackles even while in their cells; and 5

handling them in other rough and inappropriate ways. See id. ¶ 105; see also 6

Supplemental OIG Report at 8–28. MDC staff also referred to the 9/11 detainees 7

as “‘terrorists,’ and other offensive names; threaten[ed] them with violence; 8

curs[ed] at them; insult[ed] their religion; and ma[de] humiliating sexual 9

comments during strip

‐ searches.” Compl. ¶ 109. Specifically, Plaintiffs and 10

putative class members at the MDC were referred to by staff as “camel[s],” 11

“fucking Muslims,” and “Arabic asshole[s],” id. ¶¶ 110, 147, 218. 12

The MDC Plaintiffs did not receive copies of the Koran for weeks or 13

months after requesting them, and one Plaintiff never received a copy, “pursuant 14

to a written MDC policy

. . . that prohibited the 9/11 detainees from keeping 15

anything, including a Koran, in their cell[s].” Id. ¶ 132. The MDC Plaintiffs were 16

also “denied the Halal food required by their Muslim faith.” Id. ¶ 133. And 17

“MDC staff frequently interrupted Plaintiffs’ and class members’ prayers,” 1815 including “by banging on cell doors,” yelling derogatory comments, and 1

mocking the detainees while they prayed. Id. ¶ 136. 2

The named MDC Plaintiffs’ individual experiences—several of which are 3

highlighted below—add further texture to their collective allegations concerning 4

the arrest and confinement of the 9/11 detainees. 5

A. Anser Mehmood 6

Mehmood, a citizen of Pakistan and devout Muslim, entered the United 7

States on a business visa in 1989 with his wife, Uzma, and their three children. 8

After his visa expired, Mehmood remained in the country and started a trucking 9

business that provided enough earnings to purchase a home in New Jersey and 10

to send funds to his family in Pakistan. In 2000, while living in New Jersey, he 11

and Uzma had their fourth child. In May 2001, Uzma’s brother—a United States 12

citizen—submitted an immigration petition for the entire family. 13

On the morning of October 3, 2001, Mehmood was asleep with Uzma and 14

their one

‐ year

‐ old son when FBI and INS agents knocked on his door. The 15

agents searched Mehmood’s home and asked whether he “was involved with a 16

jihad.” Id

. ¶ 157. Mehmood admitted that he had overstayed his visa. The FBI 17

informed Mehmood that they were not interested in him; they had come to arrest 1816 his wife Uzma, whose name the FBI had encountered when investigating 1

Plaintiff Ahmer Abbasi, her brother. Mehmood convinced the FBI to arrest him 2

instead of Uzma because their son was still breastfeeding. “The Agent told 3

Mehmood that they had no choice but to arrest one of the parents, but that 4

Mehmood faced a minor immigration violation only, and he would be out on 5

bail within days.” Id

. ¶ 159. 6

Upon his arrival at the MDC, Mehmood “was dragged from the van by 7

several large correctional officers, who threw him into several walls on his way 8

into the facility.” Id. ¶ 162. “His left hand was broken during this incident” and 9

“[t]he guards threatened to kill him if he asked any questions.” Id

. His 10

experience in the ADMAX SHU tracked that of other 9/11 detainees. For 11

instance, “[w]henever Mehmood was removed from his cell, he was placed in 12

handcuffs, chains, and shackles. Four or more MDC staff members typically 13

escorted him to his destination, frequently inflicting unnecessary pain along the 14

way, for example, by banging him into the wall, dragging him, carrying him, and 15

stepping on his shackles and pushing his face into the wall.” Id. ¶ 166. Neither 16

the FBI nor INS interviewed Mehmood following his arrest. Mehmood was not 17

released from the ADMAX SHU until February 6, 2002. 1817 B. Ahmed Khalifa 1

Khalifa, who had completed five years toward a medical degree at the 2

University of Alexandria in Egypt, came to the United States on a student visa in 3

July 2001. He came to the FBI’s attention after the FBI received a tip that “several 4

Arabs who lived at Khalifa’s address were renting a post

‐ office box, and possibly 5

sending out large quantities of money.” Id. ¶ 195. On September 30, 2001, FBI, 6

INS, and officers from the New York City Police Department came to the 7

apartment Khalifa shared with several Egyptian friends. The officers searched 8

his wallet and apparently became “very interested in a list of phone numbers of 9

friends in Egypt.” Id. ¶ 196. After searching the apartment, the agents asked 10

Khalifa for his passport and “if he had anything to do with September 11.” Id. 11

¶ 197. One FBI agent told Khalifa that they were only interested in three of his 12

roommates, but another agent said they also needed Khalifa, whom they arrested 13

for “working without authorization.” Id. 14

On October 1, 2001, after briefly stopping at a local INS detention facility to 15

complete paperwork, Khalifa and his roommates were transported to the MDC. 16

When he arrived at the MDC, Khalifa “was slammed into the wall, pushed and 17

kicked by MDC officers and placed into a wet cell, with a mattress on the floor.” 1818 Id. ¶ 201. “[His] wrists were cut and bruised from his handcuffs, and he was 1

worried about other detainees, whom he heard gasping and moaning through 2

the walls of his cell.” Id

. 3

FBI and INS agents interviewed Khalifa on October 7, 2001. One of the 4

agents apologized to Khalifa after noticing the bruises on his wrists. When 5

Khalifa stated that MDC guards were abusing him, the agents “stated it was 6

because he was Muslim.” Id. ¶ 202. In notes from the interview, the agents did 7

not question Khalifa’s credibility, and noted no suspicion of ties to terrorism or 8

interest in him in connection with PENTTBOM. 9

Following the interview, MDC guards strip searched Khalifa and “laughed 10

when they made him bend over and spread his buttocks.” Id. ¶ 203. Khalifa 11

complains of the conditions associated with detention in the ADMAX SHU, 12

including arbitrary and abusive strip searches, sleep deprivation, constructive 13

denial of recreational activities and hygiene items, and deprivation of food and 14

medical attention. 15

By November 5, 2001, the New York FBI field office affirmatively cleared 16

Khalifa of any ties to terrorism and sent his name to FBI Headquarters for final 1719 clearance. Khalifa was not officially cleared until December 19, 2001. He 1

remained confined in the ADMAX SHU until mid

‐ January 2002. 2

C. Purna Raj Bajracharya 3

Bajracharya is neither Muslim nor Arab. He is a Buddhist and native of 4

Nepal who entered the United States on a three

‐ month business visa in 1996. 5

After overstaying his visa, Bajracharya remained in Queens, New York, for five 6

years, working various odd jobs to send money home to his wife and sons in 7

Nepal. Having planned to return home in the fall or winter of 2001, Bajracharya 8

used a video camera to capture the streets he had come to know in New York. 9

He came to the FBI’s attention on October 25, 2001, when a Queens County 10

District Attorney’s Office employee “observed an ‘[A]rab male’ videotaping 11

outside a Queens[] office building that contained the Queens County District 12

Attorney[’s] Office and a New York FBI office.” Id. ¶ 230. When approached by 13

investigators from the District Attorney’s Office, Bajracharya tried to explain that 14

he was a tourist. The investigators took him inside the building and interrogated 15

him for five hours. FBI and INS agents arrived at some point during the 16

interrogation. Bajracharya subsequently took the agents to his apartment; 1720 provided them with his identification documents, which established his country 1

of origin; and admitted to overstaying his visa. 2

Apparently due to the videotaping, Bajracharya was designated as being 3

of “special interest” to the FBI and on October 27, 2001, he was transported to the 4

MDC. Id. ¶¶ 233

− 34. On October 30, 2001, the FBI agent assigned to 5

Bajracharya’s case, along with other law enforcement personnel, interviewed him 6

with the aid of an interpreter. During the interview, “Bajracharya was asked 7

whether he was Muslim or knew any Muslims.” Id. ¶ 235. Bajracharya 8

explained that he was not Muslim and knew no Muslims. The FBI agent’s notes 9

from the interview do not question Bajracharya’s credibility or express any 10

suspicion of ties to terrorism. Two days later, the same agent affirmatively 11

cleared Bajracharya of any link to terrorism. By November 5, 2001, the New 12

York FBI field office completed its investigation and forwarded Bajracharya’s 13

case to FBI Headquarters for final clearance. Documents at FBI Headquarters 14

note that the FBI had no interest in Bajracharya by mid

‐ November 2001. 15

Nonetheless, he was not released from the ADMAX SHU until January 13, 2002. 16

The FBI agent assigned to Bajracharya’s case did not understand why 17

Bajracharya remained in the ADMAX SHU throughout this period; the agent 1821 eventually called the Legal Aid Society and advised an attorney that Bajracharya 1

needed legal representation. 2

Bajracharya, who is 5’3” and weighed about 130 pounds at the time of his 3

arrest, complains of the same conditions common to the other MDC Plaintiffs. 4

For instance, he could not sleep due to the light in his cell, and when he was 5

removed from his cell, he would be placed in handcuffs, chains, and shackles 6

and escorted by four or more MDC staff members. Bajracharya became so 7

traumatized by his experience in the ADMAX SHU that he wept constantly. 8

When an attorney requested that the MDC transfer Bajracharya to general 9

population, an MDC “doctor responded that Bajracharya was crying too much, 10

and would cause a riot.” Id. ¶ 241. 11

IV. The New York List and the “Of Interest” Designation 12

As originally articulated by Ashcroft, following 9/11, the DOJ sought to 13

prevent future terrorism by arresting and detaining those people who “have 14

been identified as persons who participate in, or lend support to, terrorist 15

activities.” OIG Report at 12 (internal quotation marks omitted). To that end, 16

Michael Pearson, who was then INS Executive Associate Commissioner for Field 17

Operations, issued a series of Operational Orders, which addressed the 1822 responsibilities of INS agents operating with the FBI to investigate leads on 1

illegal aliens. A September 22, 2001 order instructed agents to “exercise sound 2

judgment” and to limit arrests to those aliens in whom the FBI had an “interest” 3

and discouraged arrest in cases that were “clearly of no interest in furthering the 4

investigation of the terrorist attacks of September 11th.” Id

. at 45 (internal 5

quotation marks omitted). The “of interest” designation by an FBI agent had 6

significant implications for a detainee. “Of interest” detainees were placed on 7

the INS List, subject to the hold

‐ until

‐ cleared policy, and required FBI clearance 8

of any connection to terrorism before they could be released or removed from the 9

United States. Detainees who were not designated “of interest” to the FBI’s 10

PENTTBOM investigation were not placed on the INS List, did not require 11

clearance by the FBI, and could be processed according to normal INS 12

procedures. Id. at 40. 13

The arrest and detention mandate was not uniformly implemented 14

throughout the country. Specifically, the New York FBI investigated all 15

PENTTBOM leads without vetting the initial tip and designated as “of interest” 16

“anyone picked up on a PENTTBOM lead

. . . regardless of the strength of the 17

evidence or the origin of the lead.” Id

. at 41; see also Compl. ¶¶ 43–45. For 1823 instance, days after 9/11, New York City police stopped three Middle Eastern 1

men in Manhattan on a traffic violation and found plans to a public school in the 2

car. The next day, their employer confirmed that the men had the plans because 3

they were performing construction work on the school. Nonetheless, the men 4

were arrested and detained. See OIG Report at 42. In another instance, a Middle 5

Eastern man was arrested for illegally crossing into the United States from 6

Canada over a week before 9/11. After the attacks, the man was placed on New 7

York’s “‘special interest’ list even though a document in his file, dated September 8

26, 2001, stated that FBI New York had no knowledge of the basis for his 9

detention.” Id

. at 64 (internal quotation marks omitted). 10

In many cases, the New York FBI did not even attempt to determine 11

whether the alien was linked to terrorism, see id

. at 14, 16, 41

− 42, 47, and it “never 12

labeled a detainee ‘no interest’ until after the clearance process was complete,” id

. 13

at 18 (emphasis added). Thus, aliens encountered and arrested pursuant to a 14

PENTTBOM lead in New York were designated “of interest” (or special interest) 15

and held until the local field office confirmed they had no ties to terrorism. Id. at 1624 14; see also id. at 53. 11 The result was that the MDC Plaintiffs and others similarly 1

situated in New York were held at the MDC ADMAX SHU as if they met the 2

national “of interest” designation. These practices—specifically the absolute lack 3

of triage—appear to have been unique to New York. See id. at 47, 56. 12 4

At some point in October 2001, INS representatives to the SIOC Working 5

Group learned that the New York FBI was maintaining a separate list (the “New 6

York List”) of detainees who had not been included in the national INS List. One 7

explanation for maintaining a separate New York List was that the New York FBI 8

could not determine if the detainees had any connection with terrorist activity. 9

Id

. at 54. 10

After INS Headquarters learned of the separate New York List, small 11

groups of senior officials from the DAG’s Office, the FBI, and the INS convened 12

on at least two occasions in October and November 2001 to suggest how to deal 13

with the two separate lists of detainees. In discussing how to address the New 14

11 The OIG Report indicates that 491 of the 762 detainees were arrested in New York.

OIG Report at 21

− 22. However, the OIG Report does not identify how many New York

arrests were the result of the New York FBI’s efforts.

12 The OIG Report posits that the New York response differed from the rest of the

nation, at least in part, as a result of the New York FBI and U.S. Attorney’s Office’s long

tradition of independence from their headquarters in Washington, D.C. See OIG Report

at 54.25 York List, “officials at the INS, FBI, and [DOJ] raised concerns about, among 1

other things, whether the aliens [on the New York List] had any nexus to 2

terrorism.” Id

. at 53. Nonetheless, this list was merged with the INS List due to 3

the concern that absent further investigation, “the FBI could unwittingly permit a 4

dangerous individual to leave the United States.” Id

. The decision to merge the 5

lists ensured that some of the individuals on the New York List would remain 6

detained in the challenged conditions of confinement as if there were some 7

suspicion that those individuals were tied to terrorism, even though no such 8

suspicion existed. 9

V. The Issues on Appeal 10

In a January 15, 2013 Memorandum and Order, the district court granted 11

in part and denied in part Defendants’ motions to dismiss the Complaint. The 12

district court dismissed all claims against the DOJ Defendants. As to the MDC 13

Defendants, the district court denied their motions to dismiss Plaintiffs’ 14

substantive due process conditions of confinement claim (Claim 1); equal 15

protection conditions of confinement claim (Claim 2); free exercise claim (Claim 16

3); unreasonable strip search claim (Claim 6); and conspiracy claim under 42 17

U.S.C. § 1985(3) (Claim 7). See Turkmen III

, 915 F. Supp. 2d at 324. The MDC 1826 Defendants appealed, and Plaintiffs cross

‐ appealed the dismissal of the claims 1

against the DOJ Defendants based on a judgment that was entered pursuant to 2

Rule 54(b) of the Federal Rules of Civil Procedure. 13 3

DISCUSSION 14 4

I. Pleading Standard 5

To satisfy Iqbal ’s plausibility standard, Plaintiffs must “plead[] factual 6

content that allows the court to draw the reasonable inference that the defendant 7

is liable for the misconduct alleged.” 556 U.S. at 678. Although plausibility is not 8

a “probability requirement,” Plaintiffs must allege facts that permit “more than a 9

sheer possibility that a defendant has acted unlawfully.” Id

. (internal quotation 10

marks omitted). Factual allegations that are “merely consistent with” unlawful 11

conduct do not create a reasonable inference of liability. Id

. 12

Moreover, “[t]hreadbare recitals of the elements of a cause of action, 13

supported by mere conclusory statements, do not suffice.” Id

. Well

‐ pleaded 14

factual allegations, in contrast, should be presumed true, and we must determine 15

13 Plaintiffs have not appealed the district court’s dismissal of their interference with

counsel claims (Claims 4 and 5).

14 We review the district court’s determination of Defendants’ Rule 12(b)(6) motions to

dismiss de novo. See Papelino v. Albany Coll. of Pharmacy of Union Univ

., 633 F.3d 81, 88

(2d Cir. 2011).27 “whether they plausibly give rise to an entitlement to relief.” Id

. at 679. 1

Ultimately, every plausibility determination is a “context

‐ specific task that 2

requires the reviewing court to draw on its judicial experience and common 3

sense.” Id

. 4

With the exception of the Section 1985 conspiracy claim, all of Plaintiffs’ 5

claims allege constitutional violations based on injuries first recognized by the 6

Supreme Court in Bivens

, 403 U.S. at 388

. During the course of this litigation, the 7

Supreme Court made it clear in Iqbal that a federal tortfeasor’s Bivens liability 8

cannot be premised on vicarious liability. 556 U.S. at 676. Thus, Plaintiffs must 9

plausibly plead that each Defendant, “through the official’s own individual 10

actions,” violated Plaintiffs’ constitutional rights. Id

. In other words, Bivens 11

relief is available only against federal officials who are personally liable for the 12

alleged constitutional tort. Id. at 676

− 77. Iqbal precludes relying on a 13

supervisor’s mere knowledge of a subordinate’s mental state ( i.e.

, discriminatory 14

or punitive intent) to infer that the supervisor shared that intent. Id

. at 677. 15

Knowing that a subordinate engaged in a rogue discriminatory or punitive act is 16

not enough. But that is not to say that where the supervisor condones or ratifies 1728 a subordinate’s discriminatory or punitive actions the supervisor is free of 1

Bivens ’s reach. See id. at 683. 2

II. Availability of a Bivens Remedy for Plaintiffs’ Claims 3

Unlike the MDC Defendants, none of the DOJ Defendants challenge the 4

existence of a Bivens remedy in their briefs to this Court. While the DOJ 5

Defendants did raise this issue below, and are represented by able counsel on 6

appeal, they have chosen to not offer that argument now as a further defense of 7

their victory in the district court. However, as the reader will later discover, our 8

dissenting colleague makes much of this defense, raising it as her main objection 9

to our resolution of the appeal. Given the MDC Defendants’ arguments, as well 10

as the dissent’s decision to press the issue, legitimately noting that a district 11

court’s judgment can be affirmed on any ground supported by the record, 12

Dissenting Op., post at 7 n.4 (citing Lotes Co. v. Hon Hai Precision Indus. Co.

, 753 13

F.3d 395, 413 (2d Cir. 2014)), we think it appropriate to explain our conclusion 14

that a Bivens remedy is available for the MDC Plaintiffs’ punitive conditions of 15

confinement and strip search claims against both the DOJ and the MDC 16

Defendants. 1729 In Bivens, 403 U.S. at 388, the Supreme Court “recognized for the first time 1

an implied private action for damages against federal officers alleged to have 2

violated a citizen’s constitutional rights.” Corr. Servs. Corp. v. Malesko

, 534 U.S. 3

61, 66 (2001). “The purpose of Bivens is to deter individual federal officers from 4

committing constitutional violations.” Id

. at 70. Because a Bivens claim has 5

judicial parentage, “the Supreme Court has warned that the Bivens remedy is an 6

extraordinary thing that should rarely if ever be applied in new contexts.” Arar 7

v. Ashcroft

, 585 F.3d 559, 571 (2d Cir. 2009) (en banc) (internal quotation marks 8

omitted). Thus, a Bivens remedy is not available for all who allege injury from a 9

federal officer’s violation of their constitutional rights. 10

In Arar

, we outlined a two

‐ step process for determining whether a Bivens 11

remedy is available. First, the court must determine whether the underlying 12

claims extend Bivens into a “new context.” Id

. at 572. If, and only if, the answer 13

to this first step is yes, the court must then consider (a) “whether there is an 14

alternative remedial scheme available to the plaintiff,” and, even if there is not, 15

(b) “whether special factors counsel hesitation in creating a Bivens remedy.” Id

. 16

(internal quotation marks and brackets omitted). As Arar noted, case law 17

provides limited guidance regarding how to determine whether a claim presents 1830 a new context for Bivens purposes. Thus, “[w]e construe[d] the word ‘context’ as 1

it is commonly used in law: to reflect a potentially recurring scenario that has 2

similar legal and factual components.” Id

. 3

Determining the “context” of a claim can be tricky. The MDC Defendants 4

contend that the context of Plaintiffs’ claims is the nation’s “response to an 5

unprecedented terrorist attack.” Sherman Br. 45. The DOJ Defendants made a 6

similar argument before the district court in an earlier round of this litigation. 7

See Turkmen I

, 2006 WL 1662663, at *30. The MDC Defendants, and the dissent 8

on behalf of the DOJ Defendants, contend that Arar supports this view. But if 9

that were the case, then why did Arar take pains to note that the “context” of 10

Arar’s claims was not the nation’s continuing response to terrorism, but the acts 11

of federal officials in carrying out Arar’s extraordinary rendition? 585 F.3d at 12

572. We looked to both the rights injured and the mechanism of the injury to 13

determine the context of Arar’s claims. In rejecting the availability of a Bivens 14

remedy, we focused on the mechanism of his injury: extraordinary rendition—“a 15

distinct phenomenon in international law”—and determined this presented a 16

new context for Bivens

‐ based claims. Id

. Only upon concluding that 17

extraordinary rendition presented a new context did we examine the policy 1831 concerns and competing remedial measures available to Arar. In our view, 1

setting the context of the Bivens claims here as the national response in the wake 2

of 9/11 conflates the two

‐ step process dictated by this Court in Arar. The reasons 3

why Plaintiffs were held at the MDC as if they were suspected of terrorism do 4

not present the “context” of their confinement—just as the reason for Arar’s 5

extraordinary rendition did not present the context of his claim. Without doubt, 6

9/11 presented unrivaled challenges and severe exigencies—but that does not 7

change the “context” of Plaintiffs’ claims. “[M]ost of the rights that the 8

Plaintiff[s] contend[] were violated do not vary with surrounding circumstances, 9

such as the right not to be subjected to needlessly harsh conditions of 10

confinement, the right to be free from the use of excessive force, and the right not 11

to be subjected to ethnic or religious discrimination. The strength of our system 12

of constitutional rights derives from the steadfast protection of those rights in 13

both normal and unusual times.” Iqbal v. Hasty ( Hasty ), 490 F.3d 143, 159 (2d Cir. 14

2007), rev’d on other grounds sub nom

. Iqbal

, 556 U.S. 662. 15

Thus, we think it plain that the MDC Plaintiffs’ conditions of confinement 16

claims are set in the following context: federal detainee Plaintiffs, housed in a 17

federal facility, allege that individual federal officers subjected them to punitive 1832 conditions. This context takes account of both the rights injured (here, 1

substantive due process and equal protection rights) 15 and the mechanism of 2

injury (punitive conditions without sufficient cause). The claim—that individual 3

officers violated detainees’ constitutional rights by subjecting them to harsh 4

treatment with impermissible intent or without sufficient cause—stands firmly 5

within a familiar Bivens context. Both the Supreme Court and this Circuit have 6

recognized a Bivens remedy for constitutional challenges to conditions of 7

confinement. In Carlson v. Green

, 446 U.S. 14, 17–20 (1980), the Supreme Court 8

recognized an implied remedy for the plaintiff’s claim alleging an Eighth 9

Amendment violation for prisoner mistreatment. Furthermore, in Malesko

, in 10

refusing to extend a Bivens remedy to claims against private corporations 11

housing federal detainees, the Supreme Court observed in dicta that, while no 12

15 The rights

‐ injured component of Plaintiffs’ claims fall within a recognized Bivens

context. This Circuit has presumed the availability of a Bivens remedy for substantive

due process claims in several cases. See Arar

, 585 F.3d at 598 (Sack, J., dissenting) (citing

cases). In addition, the Supreme Court has acknowledged the availability of “a Bivens

action to redress a violation of the equal protection component of the Due Process

Clause of the Fifth Amendment.” Iqbal

, 556 U.S. at 675 (citing Davis v. Passman

, 442 U.S.

228 (1979)). And while it is true that the Supreme Court has subsequently declined to

extend Davis to other employment discrimination claims, such as in Chappell v. Wallace

,

462 U.S. 296, 300–04 (1983), the Court’s analysis was focused on the special nature of the

employer

‐ employee relationship in the military—or, in other words, the mechanism of

injury. Here, where the mechanism of injury is also familiar, a Bivens remedy is plainly

available.33 claim was available against the private corporation

, a federal prisoner would have 1

a remedy against federal officials for constitutional claims. 534 U.S. at 72. “If a 2

federal prisoner in a BOP facility alleges a constitutional deprivation, he may 3

bring a Bivens claim against the offending individual officer, subject to the 4

defense of qualified immunity.” Id

. The Court went on to recognize that the 5

“prisoner may not bring a Bivens claim against the officer’s employer, the United 6

States, or the BOP.” Id

. The MDC Plaintiffs’ claims here plainly follow Malesko ’s 7

guidance: the claims are raised against the individual officers, both at the DOJ 8

and the MDC, who were responsible for subjecting the Plaintiffs to punitive 9

conditions of confinement. 10

The Second Circuit has also recognized the availability of Bivens relief for 11

federal prisoners housed in federal facilities bringing claims against individual 12

federal officers. In Thomas v. Ashcroft

, 470 F.3d 491, 497 (2d Cir. 2006), this Court 13

reversed the district court’s dismissal of the prisoner plaintiff’s Bivens claim for 14

violation of his due process rights against supervisory prison officials. See also 15

Tellier v. Fields

, 280 F.3d 69, 80

– 83 (2d Cir. 2000) (recognizing a Bivens remedy for 16

a claim of deprivation of procedural due process brought by a federal prisoner 17

against federal prison officials). Furthermore, in Hasty

, where we considered 1834 claims nearly identical to those at issue in this case, we “did not so much as hint 1

either that a Bivens remedy was unavailable or that its availability would 2

constitute an unwarranted extension of the Bivens doctrine.” Arar

, 585 F.3d at 3

597 (Sack, J., dissenting) (discussing Hasty

, 490 F.3d at 177

– 78). 4

Our sister circuits have also permitted Bivens claims for unconstitutional 5

conditions of confinement. In Cale v. Johnson

, 861 F.2d 943, 947 (6th Cir. 1988), 6

abrogated on other grounds by Thaddeus

– X v. Blatter

, 175 F.3d 378 (6th Cir. 1999) (en 7

banc), the Sixth Circuit held that “federal courts have the jurisdictional authority 8

to entertain a Bivens action brought by a federal prisoner, alleging violations of 9

his right to substantive due process.” The Third Circuit has also permitted a 10

federal inmate to bring a civil rights action against prison officials. See Bistrian v. 11

Levi

, 696 F.3d 352, 372

– 75 (3d Cir. 2012) (assuming availability of a Bivens remedy 12

for plaintiff’s Fifth Amendment substantive due process and other constitutional 13

claims challenging his conditions of confinement). 14

Notwithstanding the persuasive precedent suggesting the availability of a 15

Bivens remedy for the MDC Plaintiffs’ conditions of confinement claims, the 16

MDC Defendants, and our dissenting colleague, argue that the MDC Plaintiffs’ 17

claims present a new Bivens context because the Plaintiffs are illegal aliens. But 1835 because the MDC Plaintiffs’ right to be free from punitive conditions of 1

confinement is coextensive with that of a citizen, their unlawful presence in the 2

United States at the time of the challenged confinement does not place their 3

standard mistreatment claim into a new context. Indeed, the Fifth Circuit has 4

recognized a Bivens claim raised by a Mexican national for violations of her 5

Fourth and Fifth Amendment rights to be free from false imprisonment and the 6

use of excessive force by law enforcement personnel. See Martinez

‐ Aguero v. 7

Gonzalez

, 459 F.3d 618, 625 (5th Cir. 2006). The Ninth Circuit has also recognized 8

a Bivens claim for due process violations that occurred during an illegal alien 9

plaintiff’s detention. S ee Papa v. United States

, 281 F.3d 1004, 1010–11 (9th Cir. 10

2002). 16 Thus, we conclude that a Bivens remedy is available for the Plaintiffs’ 11

substantive due process and equal protection conditions of confinement claims. 12

Our understanding of Bivens and this Court’s decision in Arar do not 13

however suggest the availability of a Bivens remedy for the Plaintiffs’ free 14

exercise claim. That claim—that Defendants deliberately interfered with 15

16 We note that the Ninth Circuit has declined to provide illegal aliens with an implied

Bivens remedy for unlawful detention during deportation proceedings. Mirmehdi v.

United States

, 689 F.3d 975, 981–83 (9th Cir. 2012). Of course, that decision is plainly

inapposite here where the MDC Plaintiffs do not challenge the fact that they were

detained, but rather the conditions in which they were detained.36 Plaintiffs’ religious practices by: (1) denying them timely access to copies of the 1

Koran; (2) denying them Halal food; and (3) failing to stop MDC staff from 2

interfering with Plaintiffs’ prayers—does not fall within a familiar Bivens context. 3

Here, it is the right injured—Plaintiffs’ free exercise right—and not the 4

mechanism of injury that places Plaintiffs’ claims in a new Bivens context. 5

Indeed, the Supreme Court has “not found an implied damages remedy under 6

the Free Exercise Clause” and has “declined to extend Bivens to a claim sounding 7

in the First Amendment.” Iqbal

, 556 U.S. at 675 (citing Bush v. Lucas

, 462 U.S. 367 8

(1983)). Accordingly, we agree with the MDC Defendants that Plaintiffs’ free 9

exercise claim should have been dismissed. 10

But the MDC Plaintiffs’ claim that they were subjected to unlawful strip 11

searches falls within an established Bivens context: federal detainee plaintiffs, 12

housed in a federal facility, allege that individual federal officers subjected them 13

to unreasonable searches in violation of the Fourth Amendment. The MDC 14

Defendants fail to persuasively explain why recognizing the MDC Plaintiffs’ 15

unlawful strip search claim would extend Bivens to a new context. Indeed, the 16

right violated certainly falls within a recognized Bivens context: the Fourth 17

Amendment is at the core of the Bivens jurisprudence, as Bivens itself concerned a 1837 Fourth Amendment claim. In Bivens

, the plaintiff brought a Fourth Amendment 1

claim for the defendants’ use of unreasonable force without probable cause, 2

resulting in the plaintiff’s unlawful arrest. 403 U.S. at 389

– 90; see also Groh v. 3

Ramirez

, 540 U.S. 551, 555 (2004) (recognizing the availability of a Bivens remedy 4

for a Fourth Amendment claim of an unreasonable search, as a result of a facially 5

invalid warrant). This Circuit has also permitted Bivens relief for Fourth 6

Amendment claims involving unreasonable searches. See, e.g.

, Castro v. United 7

States

, 34 F.3d 106, 107 (2d Cir. 1994). And the mechanism of the violation—here, 8

an unreasonable search performed by a prison official—has also been recognized 9

by this Circuit. Indeed, in Arar

, we stated that “[i]n the small number of contexts 10

in which courts have implied a Bivens remedy, it has often been easy to identify 11

both the line between constitutional and unconstitutional conduct, and the 12

alternative course which officers should have pursued.

. . . [T]he immigration 13

officer who subjected an alien to multiple strip searches without cause should 14

have left the alien in his clothes.” 585 F.3d at 580; see also Hasty

, 490 F.3d at 170– 15

73 (assuming the existence of a Bivens remedy to challenge strip searches under 16

the Fourth Amendment). 1738 Accordingly, we conclude that a Bivens remedy is available for Plaintiffs’ 1

conditions of confinement claims, under both the Due Process and Equal 2

Protection Clauses of the Fifth Amendment, and Fourth Amendment 3

unreasonable and punitive strip searches claim. 17 However, Plaintiffs’ free 4

exercise claim would require extending Bivens to a new context, a move we 5

decline to make absent guidance from the Supreme Court. 6

III. Claim 1: Substantive Due Process Conditions of Confinement 7

The MDC Plaintiffs allege that the harsh conditions of confinement in the 8

MDC violated their Fifth Amendment substantive due process rights and that all 9

Defendants are liable for this harm. 18 Plaintiffs present distinct theories of 10

liability as to the DOJ and MDC Defendants. 11

A. Applicable Legal Standard 12

The Fifth Amendment’s Due Process Clause forbids subjecting pretrial 13

detainees to punitive restrictions or conditions. See Bell v. Wolfish ( Wolfish ), 441 14

17 Because we conclude that Plaintiffs’ substantive due process, equal protection, and

unreasonable punitive strip searches claims do not extend Bivens to a new context, we

need not address “whether there is an alternative remedial scheme available to the

plaintiff” or “whether special factors counsel hesitation in creating a Bivens remedy.”

Arar

, 585 F.3d at 572 (internal quotation marks and brackets omitted).

18 Turkmen and Sachdeva, the Passaic Plaintiffs, do not bring a substantive due process

conditions of confinement claim or unreasonable strip search claim (Claims 1 and 6).39 U.S. 520, 535 & n.16 (1979). 19 Plaintiffs must plausibly plead that Defendants, (1) 1

with punitive intent, (2) personally engaged in conduct that caused the 2

challenged conditions of confinement. See id

. at 538; see also Iqbal

, 556 U.S. at 676– 3

77. Absent “an expressed intent to punish,” Wolfish

, 441 U.S. at 538, we may only 4

infer that Defendants acted with punitive intent if the challenged conditions 5

were “not reasonably related to a legitimate goal—if [they were] arbitrary or 6

purposeless,” id

. at 539. 7

B. The DOJ Defendants 8

While the DOJ Defendants do not raise a no

‐ Bivens

‐ claim defense, they do 9

forcefully contest liability here with powerful post

‐ Iqbal assertions that “the 10

former Attorney General and FBI Director did not themselves require or specify 11

any of the particular conditions set forth in the complaint. And they cannot be 12

held liable on what amounts to a theory of respondeat superior for the actions of 13

others who may have imposed those conditions.” Ashcroft & Mueller Br. 10. 14

They contend that because the former Attorney General’s initial detention order 15

was constitutional, having been approved by the Supreme Court in Iqbal

, the DOJ 16

19 The parties have not argued for a different standard in this appeal. Accordingly, we

do not address whether the rights of civil immigration detainees should be governed by

a standard that is even more protective than the standard that applies to pretrial

criminal detainees.40 Defendants were “entitled to presume that the facially constitutional policy 1

would in turn be implemented lawfully

. . . .” Id

. at 9. We agree

. . . to a point. 2

The MDC Plaintiffs concede that the DOJ Defendants did not create the 3

particular conditions in question. See Turkmen III

, 915 F. Supp. 2d at 326 n.4; see 4

also OIG Report at 19, 112

− 13 (reporting that, at least initially, BOP officials 5

determined the conditions under which detainees would be held, without 6

direction from the FBI or elsewhere). The MDC Plaintiffs similarly fail to plead 7

that Ashcroft’s initial arrest and detention mandate required subordinates to 8

apply excessively restrictive conditions to civil detainees against whom the 9

government lacked individualized suspicion of terrorism. Given the mandate’s 10

facial validity, the DOJ Defendants had a right to presume that subordinates 11

would carry it out in a constitutional manner. See Al

‐ Jundi v. Estate of Rockefeller

, 12

885 F.2d 1060, 1065

− 66 (2d Cir. 1989). But that is not the end of the matter. 13

The MDC Plaintiffs plausibly plead that the DOJ Defendants were aware 14

that illegal aliens were being detained in punitive conditions of confinement in 15

New York and further knew that there was no suggestion that those detainees 16

were tied to terrorism except for the fact that they were, or were perceived to be, 1741 Arab or Muslim. 20 The MDC Plaintiffs further allege that while knowing these 1

facts, the DOJ Defendants were responsible for a decision to merge the New York 2

List with the national INS List, which contained the names of detainees whose 3

detention was dependent not only on their illegal immigrant status and their 4

perceived Arab or Muslim affiliation, but also a suspicion that they were 5

connected to terrorist activities. The merger ensured that the MDC Plaintiffs 6

would continue to be confined in punitive conditions. This is sufficient to plead 7

a Fifth Amendment substantive due process violation. 21 Given the lack of 8

20 The dissent counters that “[t]his is not apparent in the record,” citing Plaintiff

Bajracharya’s videotaping of a building in Queens as evidence of that Plaintiff’s possible

tie to terrorism. Dissenting Op., post at 43 n.28. The dissent makes no mention, of

course, of Plaintiff Khalifa, who was told that the FBI was only interested in his

roommates, but who was arrested and then detained in the ADMAX SHU anyway,

Compl. ¶ 197; or of Plaintiff Mehmood, who was arrested and detained in the ADMAX

SHU in place of his wife, in whom the FBI had apparently expressed interest, but who

was still breastfeeding their son, id

. ¶ 159. The dissent further claims that detainees

were not sent to the ADMAX SHU based on their perceived race or religion, but—as the

OIG Report states—based on whether they were designated of “high interest” to the

PENTTBOM investigation. Dissenting Op., post at 44 n.28 (citing OIG Report at 18, 111).

But, as the dissent concedes, id

., Plaintiffs’ well

‐ pleaded Complaint specifically

contradicts this point: the MDC Plaintiffs were detained in the ADMAX SHU “even

though they had not been classified ‘high interest,’” Compl. ¶ 4.

21 We acknowledge, as the dissent points out, that the MDC Plaintiffs did not advance

the “lists

‐ merger theory” before this Court or the district court. Dissenting Op., post at

43 n.28. Rather, they structured the Complaint to challenge Ashcroft’s arrest and

detention mandate as initially formulated and generally applied. In examining the

Complaint’s sufficiency, we have been clear that the pleadings are inadequate to

challenge the validity of the policy ab initio

, but do state a claim with regard to the

merger decision, an event that Plaintiffs explicitly reference in the Complaint. See42 individualized suspicion, the decision to merge the lists was not “reasonably 1

related to a legitimate goal.” See Wolfish

, 441 U.S. at 539. The only reason why 2

the MDC Plaintiffs were held as if they were suspected of terrorism was because 3

they were, or appeared to be, Arab or Muslim. We conclude that this plausibly 4

pleads punitive intent. Id

. 5

1. Punitive Conditions of Confinement 6

Contrary to the district court’s conclusion that Plaintiffs failed to “allege 7

that the DOJ [D]efendants were even aware of [the] conditions,” Turkmen III

, 915 8

F. Supp. 2d at 340, the Complaint and the OIG Report each contain allegations of 9

the DOJ Defendants’ knowledge of the challenged conditions. Plaintiffs allege, 10

inter alia

, that Mueller ran the 9/11 investigation out of FBI Headquarters; and 11

that “Ashcroft, Mueller[,] and Ziglar received detailed daily reports of the arrests 12

and detentions,” Compl

. ¶ 47; see also id. ¶¶ 63

− 65. 13

The OIG Report makes plain the plausibility of Plaintiffs’ allegations. The 14

“[DOJ] was aware of the BOP’s decision to house the September 11 detainees in 15

high

‐ security sections in various BOP facilities.” OIG Report at 19. The Deputy 16

Chief of Staff to Ashcroft told the OIG that an allegation of mistreatment was 17

Compl. ¶ 47; Pls.’ Br. 38. Sufficiency analysis requires a careful parsing of the

Complaint and that is all that has occurred here.43 called to the Attorney General’s attention. Id

. at 20. And BOP Director Kathy 1

Hawk Sawyer stated that in the weeks following 9/11, the Deputy Attorney 2

General’s Chief of Staff and the Principal Associate Deputy Attorney General 3

“called her

. . . with concerns about detainees’ ability to communicate both with 4

those outside the facility and with other inmates,” id

. at 112, which she said 5

confirmed for her that the decision to house detainees in the restrictive 6

conditions of the ADMAX SHU was appropriate, id

. at 112–113. This supports 7

the reasonable inference that not only was Ashcroft’s office aware of some of the 8

conditions imposed, but affirmatively supported them. See also id

. at 113 (DOJ 9

officials told Sawyer to “take [BOP] policies to their legal limit”). 22 Furthermore, 10

the OIG Report also makes clear that conditions in the ADMAX SHU began to 11

22 The dissent attempts to minimize the force of these comments, claiming that

communications about a condition of confinement that was lifted before the merger

decision cannot support an inference as to what the DOJ Defendants knew about the

conditions in the ADMAX SHU. Dissenting Op., post at 56–57. Simply put, we

disagree. The fact remains that a condition of confinement, less severe and abusive than

the conditions at issue here, garnered the attention of senior officials; it stands to reason

that conditions that kept detainees in their cells for twenty

‐ three hours a day, denied

them sleep by bright lights, and involved excessive strip searches and physical abuse,

would have come to the DOJ Defendants’ attention.44 receive media attention soon after detentions began, see id

. at 2, 5; 23 thus, it seems 1

implausible that the public’s concerns did not reach the DOJ Defendants’ desks. 2

Of course, we cannot say for certain that daily reports given to Ashcroft 3

and Mueller detailed the conditions at the ADMAX SHU or that the daily 4

meetings of the SIOC Working Group (containing representatives from each of 5

the DOJ Defendants’ offices) discussed those conditions. But on review of a 6

motion to dismiss, Plaintiffs need not prove their allegations; they must plausibly 7

plead them. At a minimum, a steady stream of information regarding the 8

challenged conditions flowed between the BOP and senior DOJ officials. Given 9

the MDC Plaintiffs’ allegations, the media coverage of conditions at the MDC, 10

and the DOJ Defendants’ announced central roles in PENTTBOM, it seems to us 11

plausible that information concerning conditions at the MDC, which held eighty

‐ 12

four of the 9/11 detainees, reached the DOJ Defendants. 24 13

23 See, e.g.

, Neil A. Lewis, A Nation Challenged: The Detainees; Detentions After Attacks Pass

1,000, U.S. Says

, N.Y. T IMES

, Oct. 30, 2001, available at

http://www.nytimes.com/2001/10/30/us/a

‐ nation

‐ challenged

‐ the

‐ detainees

‐ detentions

‐

after

‐ attacks

‐ pass

‐ 1000

‐ us

‐ says.html (citing “common news reports of abuse involv[ing]

mistreatment of prisoners of Middle Eastern background at jails”).

24 Furthermore, the OIG reports were issued pursuant to the Office of the Inspector

General’s responsibilities under the USA PATRIOT Act, which was enacted on October

26, 2001. See OIG Report at 3 n.6. The PATRIOT Act, Section 1001, reads: “The

Inspector General of the Department of Justice shall designate one official who shall—

(1) review information and receive complaints alleging abuses of civil rights and civil45 2. Lack of Individualized Suspicion 1

The MDC Plaintiffs also plausibly plead that the DOJ Defendants were 2

aware that the FBI had not developed any connection between some of the 3

detainees and terrorist activities. The Complaint and OIG Report both make 4

clear that the New York FBI arrested all “out

‐ of

‐ status” aliens encountered— 5

even coincidentally—in the course of investigating a PENTTBOM lead. OIG 6

Report at 41–42, 69

– 70. These arrestees were “deemed ‘of interest’ for purposes 7

of the ‘hold until cleared’ policy, regardless of the strength of the evidence or the 8

origin of the lead.” Id

. at 41. Those deemed of “high interest” were sent to the 9

MDC’s ADMAX SHU, id. at 111, but “there was little consistency or precision to 10

the process that resulted in detainees being labeled ‘high interest,’” id

. at 158. 25 11

liberties by employees and officials of the Department of Justice.” PATRIOT Act, Pub.

L. No. 107

‐ 56, § 1001, 115 Stat. 272 (2001). “On October 30, 2001, the OIG reviewed a

newspaper article in which a September 11 detainee alleged he was physically abused

when he arrived at the MDC on October 4, 2001. Based on the allegations in the article,

the OIG’s Investigations Division initiated an investigation into the matter.” OIG

Report at 144. It seems to us most plausible that if the OIG—who is “under the

authority, direction, and control of the Attorney General with respect to audits or

investigations,” 5 U.S.C. App. 3 § 8E(a)(1)—was aware of the challenged conditions at

the MDC, the DOJ Defendants were as well.

25 Even some detainees who were not labeled “high interest” were nonetheless sent to

the MDC’s ADMAX SHU. For example, “Abbasi, Bajracharya, Mehmood, and Khalifa[]

were placed in the ADMAX SHU even though they had not been classified ‘high

interest’ and despite the absence of any information indicating they were dangerous or

involved in terrorism, or any other legitimate reason for such treatment.” Compl. ¶ 4.46 Even if the DOJ Defendants were not initially aware of this practice, the 1

Complaint and OIG reports support the reasonable inference that Ashcroft and 2

Mueller learned of it within weeks of 9/11. The Complaint clearly alleges that the 3

DOJ Defendants agreed that individuals for whom the FBI could only articulate 4

an immigration law violation as a reason for detention—and for whom the FBI 5

had not developed any reliable tie to terrorism—would continue to be treated as 6

if the FBI had reason to believe the detainees had ties to terrorist activity. Compl. 7

¶ 67. Plaintiffs point to the detailed daily reports that the DOJ Defendants 8

received regarding arrests and detentions and allege that the DOJ Defendants 9

“were aware that the FBI had no information tying Plaintiffs and class members 10

to terrorism prior to treating them as ‘of interest’ to the PENTTBOM 11

investigation.” Id. ¶ 47. Indeed, they claim that Ashcroft, in particular, “insisted 12

on regular, detailed reporting on arrests”; they allege that he received a daily 13

“Attorney General’s Report” on persons arrested. Id

. ¶ 63. They further allege 14

that it was Ziglar who was ultimately responsible for providing much of this 15

information—which he gleaned from his twice daily briefings with his staff 16

regarding the 9/11 detentions—to Ashcroft, indicating that he too was aware of 17

the lack of individualized suspicion. Id

. ¶ 64. 1847 Once again, the OIG reports also support the MDC Plaintiffs’ allegation 1

that the DOJ Defendants became aware of the lack of individualized suspicion 2

for some detainees held in the challenged conditions of confinement. The OIG 3

Report states that “[a] variety of INS, FBI, and [DOJ] officials who worked on 4

the[] September 11 detainee cases told the OIG that it soon became evident that 5

many of the people arrested during the PENTTBOM investigation might not 6

have a nexus to terrorism.” OIG Report at 45. Other DOJ officials also stated 7

that it “soon became clear” that only some of the detainees were of “genuine 8

investigative interest”—as opposed to aliens identified by the FBI as “of interest” 9

for whom the FBI had no suspicion of a connection to the attacks or terrorism in 10

general. Id

. at 47. 11

The OIG Report supports the reasonable inference that this information, 12

known by other DOJ officials, came to the attention of the DOJ Defendants. In 13

particular, the OIG Report specifies that Ashcroft and Mueller were involved in a 14

“‘continuous meeting’ for the first few months” after 9/11, at which “the issue of 15

holding aliens until they were cleared was discussed.” Id

. at 39

– 40. 16

Furthermore, the OIG Report makes clear that the SIOC Working Group, 17

containing representatives from the offices of each of the DOJ Defendants, was 1848 aware of the lack of evidence tying detainees to terrorism. Id

. at 53

– 57. As we 1

have already noted, the OIG Report details how at some point in October 2001, 2

the SIOC Working Group learned about the New York List and that “officials at 3

the INS, FBI, and [DOJ] raised concerns about, among other things, whether the 4

aliens had any nexus to terrorism.” Id

. at 53. Clearly this created a major 5

problem for the DOJ. The existence of the New York List suddenly presented the 6

possibility of more than doubling the number of detainees subject to the hold

‐ 7

until

‐ cleared policy. 26 It seems quite plausible that DOJ officials would confer 8

with the Attorney General and the Director of the FBI (it was, after all, his agents 9

who were arresting out

‐ of

‐ status Arab and Muslim aliens and holding them as if 10

they were “of interest” without any suspicion of terrorist connections) about the 11

problem of the New York List and the hundreds of detainees picked up in 12

contravention of Ashcroft’s stated policy. Indeed, it seems to us implausible they 13

did not. Finally, the OIG Report once again makes clear that media reports 14

regarding allegations of mistreatment of detainees alleged that detainees 15

26 In October and November of 2001, the New York List contained approximately 300

detainees while the INS List for the rest of the nation contained only 200 detainees. OIG

Report at 54.49 remained in detention even though they had no involvement in terrorism. Id

. at 1

2, 5. 2

3. The Decision to Merge the Lists 3

Plaintiffs plausibly plead that, despite the DOJ Defendants’ knowledge of 4

the conditions at the ADMAX SHU and the lack of any form of verified suspicion 5

for a large number of those detainees on the New York List, Ashcroft approved, 6

or at least endorsed, a decision to merge the New York List. The MDC Plaintiffs 7

contend that he did so notwithstanding vocal opposition from various internal 8

sources. The Complaint clearly alleges that “[a]gainst significant internal 9

criticism from INS agents and other federal employees involved in the sweeps, 10

Ashcroft ordered that, despite a complete lack of any information or a statement 11

of FBI interest, all such Plaintiffs and class members [on the New York List] be 12

detained until cleared and otherwise treated as ‘of interest.’” Compl. ¶ 47. By 13

taking this action, Ashcroft ensured that some of the individuals on the New 14

York List would be placed in, or remain detained in, the challenged conditions of 15

confinement. 16

Our dissenting colleague levels a concern as to the import of the merger of 17

the lists and counters that nothing in the OIG reports confirms Ashcroft’s 1850 personal knowledge of the correlation between the merger of the lists and the 1

lack of individualized suspicion as to the MDC Plaintiffs. The dissent contends 2

that, because Plaintiffs’ allegations are not based on personal knowledge, there is 3

no factual basis in the record for them. Dissenting Op., post at 45. True enough 4

that Ashcroft did not acknowledge that he was aware of the merger of the lists 5

and its implication for the MDC Plaintiffs, nor did he take responsibility for it. 6

But then again a review of the OIG Report gives no indication that anybody 7

asked him. 8

The absence of an inquiry to the former Attorney General is not a criticism 9

of the Office of the Inspector General’s methods, but a simple recognition of a 10

fact that points out a key difference between our view of the OIG reports and 11

that of the dissent. For us, the OIG reports provide context for the allegations of 12

the Complaint. See supra note 6. However, it would be a mistake to think of the 13

OIG reports as a repository of all relevant facts of that troubled time; but that is 14

exactly what the dissent seems inclined to do. The dissent measures plausibility 15

by the absence or presence of fact

‐ findings in the OIG reports. Thus, for the 16

dissent, the fact that the Attorney General may not have been questioned is 17

confirmation that he knew nothing. The reports make no such assertion. 1851 It may be that following discovery it will be clear that Ashcroft was not 1

responsible for the merger decision (nor was Mueller or Ziglar), but that is not 2

the question at the pleading stage. The question is whether the MDC Plaintiffs 3

plausibly plead that Ashcroft was responsible. Given the importance of the 4

merger and its implications for how his lawful original order was being carried 5

out, we think the MDC Plaintiffs plausibly allege that he was. 6

Indeed, the OIG Report supports the MDC Plaintiffs’ allegation that 7

Ashcroft was responsible for the merger decision. An incident at one of the New 8

York List meetings provides additional context that supports that allegation. At 9

the November 2, 2001 meeting, the group discussed the necessity of CIA checks, 10

often a prerequisite to a 9/11 detainee’s release from detention. OIG Report at 55. 11

In response, Stuart Levey, the Associate Deputy Attorney General responsible for 12

oversight of immigration issues, stated that he had to “check” before 13

communicating a decision on whether “any detainees could be released without 14

the CIA check.” Id

. at 56. This response could reasonably indicate (a) a lack of 15

authority to respond to the question, or (b) that Levey wanted to consider other 16

views before making the decision. Because either is plausible, it is irrelevant that 1752 only inference (a) supports the conclusion that Levey could not answer the 1

question on his own and had to take it to more senior officials. 27 2

Furthermore, in late November 2001, when the INS Chief of Staff 3

approached Levey about the CIA check policy, Levey said that he “did not feel 4

comfortable making the decision about [the] request to change the CIA check 5

policy without additional input.” Id

. at 62. It seems to us that if Levey was not 6

comfortable changing the CIA check policy without input from more senior 7

officials, he certainly would not have been comfortable making the decision on 8

his own to double the number of detainees subject to that policy in the first 9

instance. 28 10

27 The OIG Report states that Levey specifically consulted David Laufman, the Deputy

Attorney General’s Chief of Staff. OIG Report at 62. The dissent takes this as definitive

proof that Ashcroft was not consulted on this, or the merger, decision. Dissenting Op.,

post at 47–49. The dissent mischaracterizes our reference to the CIA checks decision.

We do not contend that Levey consulted Ashcroft about that decision, nor do we need

to. In our view, the fact that Levey spoke to Laufman about that decision is not the end

of the matter; indeed, the only relevance of the CIA checks decision, period, is that

Levey was not capable of making it on his own, suggesting that he also would not be

able to make the list

‐ merger decision on his own.

28 Indeed, Ziglar told the OIG that he contacted Ashcroft’s office on November 7, 2001,

to discuss concerns about the process of clearing names from the INS Custody List,

especially the impact that merging the lists would have on that process and said that

“based on these and other contacts with senior Department officials, he believed the

Department was fully aware” of the INS’s concerns. OIG Report at 66–67. This also

suggests that Levey had communicated those concerns to Ashcroft, who nonetheless

made the decision to merge the lists.53 The dissent argues that the OIG Report forecloses the plausibility of the 1

allegation that Levey brought the list

‐ merger decision to Ashcroft because 2

“Levey made the lists

‐ merger decision ‘[a]t the conclusion of the [November 2] 3

meeting’ at which the subject was first raised to him.” Dissenting Op., post at 49 4

(quoting OIG Report at 56). But the OIG Report does not indicate that the merger 5

issue was first raised to Levey at the November 2 meeting. Rather, the OIG 6

Report makes clear that the issue of the New York List was discovered in 7

October 2001, 29 and that the decision to merge the lists was communicated at the 8

November 2 meeting. Thus, surely it is plausible that Levey consulted with more 9

senior officials, including Ashcroft, prior to that meeting. 30 Of course, discovery 10

may show that Levey was solely responsible for the decision. But, again, the 11

29 While the dissent’s observation that Levey did not attend the October 22, 2001

meeting during which the “problems presented by the New York List” were discussed

is accurate, it is also irrelevant. See Dissenting Op., post at 49–50 (quoting OIG Report at

55). We do not contend that Levey learned about the New York List at the October 22

meeting, but simply that he learned about it before the November 2 meeting, giving him

time to consult with more senior officials, including Ashcroft, before communicating a

decision at that November meeting. Indeed, one would think that Levey would not

attend the November 2 meeting without knowing its agenda.

30 The dissent challenges the sufficiency of Plaintiffs’ allegations and our reading of

them as “wholly speculative.” Dissenting Op., post at 48. Of course, Plaintiffs have no

way of knowing what Levey and Ashcroft discussed; nor do we. Iqbal does not require

as much, but rather “sufficient factual matter, accepted as true” to allow the court to

draw the reasonable inference that Ashcroft was ultimately responsible for the decision.

556 U.S. at 678. We believe that Plaintiffs have met this burden.54 question is whether Plaintiffs’ allegations support the inference that the decision 1

was Ashcroft’s; they do. 2

The MDC Plaintiffs’ allegations against Mueller and Ziglar are also 3

sufficient. The Complaint alleges, inter alia

, that Ashcroft made the decision to 4

merge the lists in spite of the lack of individualized suspicion linking the MDC 5

Plaintiffs to terrorism and that “Mueller and Ziglar were fully informed of this 6

decision, and complied with it.” Compl. ¶ 47; see also id. ¶¶ 55

− 57, 67. Mueller 7

and Ziglar are not exculpated from this claim merely because Plaintiffs allege 8

that they complied with, as opposed to ordered, the list merger. Plaintiffs 9

plausibly plead that both were aware that the separate list contained detainees 10

for whom the FBI had asserted no interest and that subjecting them to the 11

challenged conditions would be facially unreasonable. Even if an official is not 12

the source of a challenged policy, that official can be held personally liable for 13

constitutional violations stemming from the execution of his superior’s orders if 14

those orders are facially invalid or clearly illegal. See, e.g.

, Varrone v. Bilotti

, 123 15

F.3d 75, 81 (2d Cir. 1997) (granting defendants qualified immunity where there 16

was “no claim that the order was facially invalid or obviously illegal”). In this 17

instance, Plaintiffs plausibly allege that Ashcroft’s decision was facially invalid; it 1855 would be unreasonable for Mueller and Ziglar to conclude that holding ordinary 1

civil detainees under the most restrictive conditions of confinement available was 2

lawful. 3

4. Punitive Intent 4

The MDC Plaintiffs must show not only that the DOJ Defendants knew of 5

and approved continued use of the ADMAX SHU, but also that they did so with 6

punitive intent—that they endorsed the use of those conditions with an intent to 7

punish the MDC Plaintiffs. Federal courts have long recognized that punitive 8

intent is not often admitted. The Supreme Court has noted that it can be inferred 9

if the conditions of confinement are “not reasonably related to a legitimate goal.” 10

Wolfish

, 441 U.S. at 539. If the conditions under which one is held have no 11

reasonable connection to a legitimate goal of the state, then one logical 12

assumption is that they are imposed for no other purpose than to punish. See id

. 13

The DOJ Defendants argue that even if they knew of the plight of the MDC 14

Plaintiffs, the decision to continue their confinement at the MDC under 15

exceptionally harsh conditions was motivated by national security concerns—a 16

legitimate worry during the days following the 9/11 attacks—and not some 17

animus directed at the MDC Plaintiffs. They seem to imply that once “national 1856 security” concerns become a reason for holding someone, there is no need to 1

show a connection between those concerns and the captive other than that the 2

captive shares common traits of the terrorist: illegal immigrant status and a 3

perceived Arab or Muslim affiliation. Indeed, our dissenting colleague asserts 4

that because the MDC Plaintiffs were, or appeared to be, members of the 5

group—Arab or Muslim males—that was targeted for recruitment by al Qaeda 6

that they could be held in the ADMAX SHU without any reasonable suspicion of 7

terrorist activity. Dissenting Op., post at 64

– 65, 76–77. Under this view, the MDC 8

Plaintiffs were not held with punitive intent because there was no way to know 9

that they were not involved in terrorist activities. Simply being in the United 10

States illegally and being, or appearing to be, Arab or Muslim was enough to 11

justify detention in the most restrictive conditions of confinement available. 12

Indeed, Levey admitted that the decision to merge the lists, ensuring that some 13

of the 9/11 detainees would be subject to the challenged harsh conditions of 14

confinement, was made because he “wanted to err on the side of caution so that a 15

terrorist would not be released by mistake.” OIG Report at 56. 16

This argument rests on the assumption that if an individual was an out

‐ of

‐ 17

status Arab or Muslim, and someone called the FBI for even the most absurd 1857 reason, that individual was considered a possible threat to national security. It 1

presumes, in essence, that all out

‐ of

‐ status Arabs or Muslims were potential 2

terrorists until proven otherwise. It is built on a perception of a race and faith 3

that has no basis in fact. There was no legitimate governmental purpose in 4

holding someone in the most restrictive conditions of confinement available 5

simply because he happened to be—or, worse yet, appeared to be—Arab or 6

Muslim. 7

To be clear, it is “no surprise”—nor is it constitutionally problematic—that 8

the enforcement of our immigration laws in the wake of 9/11 had a “disparate, 9

incidental impact on Arab Muslims.” Iqbal

, 556 U.S. at 682. And we do not 10

contend that Supreme Court, or our own, precedent requires individualized 11

suspicion to subject detainees to generally restrictive conditions of confinement; 12

restriction is an incident of detention. Rather, we simply acknowledge that “if a 13

restriction or condition is not reasonably related to a legitimate goal—if it is 14

arbitrary or purposeless—a court permissibly may infer that the purpose of the 15

governmental action is punishment that may not constitutionally be inflicted 16

upon detainees qua detainees.” Wolfish

, 441 U.S. at 539. We believe, then, that 17

the challenged conditions—keeping detainees in their cells for twenty

‐ three 1858 hours a day, constructively denying them recreation and exposing them to the 1

elements, strip searching them whenever they were removed from or returned to 2

their cells, denying them sleep by bright lights—were not reasonably related to a 3

legitimate goal, but rather were punitive and unconstitutional. 4

While national security concerns could justify detaining those individuals 5

with suspected ties to terrorism in these challenged conditions for the litany of 6

reasons articulated by the dissent, see Dissenting Op., post at 67–68, those 7

concerns do not justify detaining individuals solely on the basis of an 8

immigration violation and their perceived race or religion in those same 9

conditions. Individualized suspicion is required here because, absent some 10

indication that the detainees had a tie to terrorism, the restrictions or conditions 11

of the ADMAX SHU were “arbitrary or purposeless.” Wolfish

, 441 U.S. at 539. 31 12

31 The dissent cites several cases that it claims demonstrate that individualized suspicion

is not required for imposing restrictive conditions of confinement. Dissenting Op., post

at 62–63. We do not disagree: individualized suspicion is not required to impose

conditions that are reasonably related to a legitimate governmental objective. Wolfish

,

441 U.S. at 539. Thus, in each of the cases cited by the dissent, rather than announce

that individualized suspicion was not required, the Supreme Court determined that the

restrictions at issue in each of those cases were related to the legitimate goal of prison

security and, therefore, were not punitive. Thus, the cases cited by the dissent do not

change our conclusion here, where the challenged conditions—the most restrictive

available and imposed on detainees qua detainees—are not reasonably related to either

the goal of prison security, or national security.59 Indeed, in Wolfish

, the Supreme Court acknowledged that “loading a 1

detainee with chains and shackles and throwing him in a dungeon may ensure 2

his [detention] and preserve the security of the institution. But it would be 3

difficult to conceive of a situation where conditions so harsh, employed to 4

achieve objectives that could be accomplished in so many alternative and less 5

harsh methods, would not support a conclusion that the purpose for which they 6

were imposed was to punish.” Id

. at 539 n.20. That is the situation before us. 7

Clearly detention conditions less restrictive than the ADMAX SHU were feasible 8

for the MDC Plaintiffs, given that the detainees held in the Passaic facility “were 9

not held in isolation or otherwise placed in restrictive confinement.” Compl. 10

¶ 66. Placing the MDC Plaintiffs in chains and shackles and throwing them in 11

the ADMAX SHU ensured that they posed no threat in the aftermath of 9/11; but 12

we can reach no conclusion other than that the DOJ Defendants’ decision to do so 13

was made with punitive intent. 14

In view of the foregoing, we hold that the MDC Plaintiffs fail to plausibly 15

plead a substantive due process claim against the DOJ Defendants coextensive 16

with the entire post

‐ 9/11 investigation and reaching back to the time of Plaintiffs’ 17

initial detention. Nonetheless, Plaintiffs’ well

‐ pleaded allegations, in conjunction 1860 with the OIG Report’s documentation of events such as the New York List 1

controversy, render plausible the claim that by the beginning of November 2001, 2

Ashcroft knew of, and approved, the MDC Plaintiffs’ confinement under severe 3

conditions, and that Mueller and Ziglar complied with Ashcroft’s order 4

notwithstanding their knowledge that the government had no evidence linking 5

the MDC Plaintiffs to terrorist activity. Discovery may ultimately prove 6

otherwise, but for present purposes, the MDC Plaintiffs’ substantive due process 7

claim—with the exception of the temporal limitation noted above—may proceed 8

against the DOJ Defendants. 9

5. Qualified Immunity 10

A defendant is entitled to qualified immunity if he can establish (1) that 11

the complaint fails to plausibly plead that the defendant personally violated the 12

plaintiff’s constitutional rights, or (2) that the right was not clearly established at 13

the time in question. See Pearson v. Callahan

, 555 U.S. 223, 232 (2009); Varrone

, 123 14

F.3d at 78 (noting that the qualified immunity inquiry turns, generally, on the 15

objective legal reasonableness of a defendant’s actions). 16

For the reasons stated above, the MDC Plaintiffs plausibly plead that the 17

DOJ Defendants violated their substantive due process rights. With regard to the 1861 second prong of this inquiry, the law regarding the punishment of pretrial 1

detainees was clearly established in the fall of 2001. As discussed, Wolfish made 2

clear that a particular condition or restriction of pretrial detention not reasonably 3

related to a legitimate governmental objective is punishment in violation of the 4

constitutional rights of detainees. See 441 U.S. at 535

− 39 & n.20. And in Hasty

, 5

this Court denied qualified immunity with respect to a materially identical 6

conditions claim against Hasty. 490 F.3d at 168

− 69. We explained that “[t]he 7

right of pretrial detainees to be free from punitive restraints was clearly 8

established at the time of the events in question, and no reasonable officer could 9

have thought that he could punish a pretrial detainee by subjecting him to the 10

practices and conditions alleged by the Plaintiff.” Id

. at 169. 11

Hasty further rejected the argument that the post

‐ 9/11 context warranted 12

qualified immunity even if it was otherwise unavailable. Id

. at 159

− 60, 169. 13

Recognizing the “gravity of the situation” that 9/11 presented, we explained that 14

qualified immunity remained inappropriate because a pretrial detainee’s right to 15

be free from punishment does not vary with the surrounding circumstances. Id

. 16

at 159. Nothing has undermined the logic or precedential authority of our 17

qualified immunity holding in Hasty

. We therefore conclude that the DOJ 1862 Defendants are not entitled to qualified immunity on the MDC Plaintiffs’ 1

conditions of confinement claim. 2

C. The MDC Defendants 3

In his opinion below, Judge Gleeson divided the MDC Plaintiffs’ 4

conditions of confinement claim against the MDC Defendants into two 5

categories: “official conditions” allegations and “unofficial abuse” allegations. 6

The “official conditions” allegations concern express confinement policies that 7

the MDC Defendants approved and implemented; the “unofficial abuse” 8

allegations concern the physical and verbal abuse that the MDC Defendants 9

employed or permitted their subordinates to employ. We find this taxonomy 10

helpful in analyzing the conditions claim against Hasty, Sherman, and Zenk. 32 11

1. Official Conditions 12

The MDC Plaintiffs generally allege that the “official conditions” to which 13

the MDC Defendants subjected them constituted punishment. We do not 14

address whether Plaintiffs have sufficiently alleged an express intent to punish, 15

but rather analyze whether they have plausibly pleaded that (1) the MDC 16

32 Plaintiffs’ allegations against Zenk do not extend to the “unofficial abuse” nor to any

harm arising from the “official conditions” that occurred prior to April 22, 2002, the

date he became MDC Warden.63 Defendants caused them to suffer the challenged conditions, and that (2) the 1

challenged conditions were “not reasonably related to a legitimate goal,” which 2

allows us to infer punitive intent, Wolfish

, 441 U.S. at 539. 3

The MDC Plaintiffs plausibly plead that Hasty and Sherman are personally 4

responsible for and caused the MDC Plaintiffs to suffer the challenged 5

conditions. The Complaint contains allegations that Hasty ordered the creation 6

of the ADMAX SHU and directed two of his subordinates to design “extremely 7

restrictive conditions of confinement.” Compl. ¶¶ 24, 75; see also id. ¶ 76 8

(describing the extreme conditions in the ADMAX SHU). According to the 9

Complaint, those conditions were then approved and implemented by Hasty and 10

Sherman. Id

. ¶ 75. 11

The OIG reports support these allegations. While the decision to impose 12

highly restrictive conditions was made at BOP headquarters, OIG Report at 19, 13

MDC officials created the particular conditions imposed, id

. at 124–25. The 14

reports specify that MDC officials modified one wing of the preexisting SHU to 15

accommodate the detainees and that the ADMAX SHU was “designed to confine 16

the detainees in the most restrictive and secure conditions permitted by BOP 17

policy.” Supplemental OIG Report at 2

– 3. As Warden and Associate Warden of 1864 the MDC, Hasty and Sherman had the responsibility to carry out these tasks. But 1

that alone would not sustain liability for either. 2

However, the MDC Plaintiffs also plausibly plead that Hasty and Sherman 3

subjected them to the challenged conditions with punitive intent because the 4

conditions were “not reasonably related to a legitimate goal.” Wolfish

, 441 U.S. at 5

539. Specifically, the MDC Plaintiffs allege that Hasty and Sherman imposed 6

these harsh conditions despite the fact that they “were aware that the FBI had not 7

developed any information to tie the MDC Plaintiffs [and other detainees] they 8

placed in the ADMAX SHU to terrorism.” Compl. ¶ 69. As discussed above 9

with respect to the DOJ Defendants, individualized suspicion was not required 10

to subject detainees to the restrictive conditions of confinement inherent in any 11

detention. But the challenged conditions were not simply restrictive; they were 12

punitive: there is no legitimate governmental purpose in holding someone as if 13

he were a terrorist simply because he happens to be, or appears to be, Arab or 14

Muslim. 15

The MDC Defendants, and our dissenting colleague, note that BOP 16

Headquarters ordered that the detainees “be placed in the highest level of 17

restrictive detention” and, thus, argue that we cannot infer punitive intent from 1865 the MDC Defendants’ compliance with that order. See Dissenting Op., post at 70 1

n.40, 71 (quoting OIG Report at 112). They further claim that because the FBI had 2

designated the individuals held in the ADMAX SHU as “of interest,” the MDC 3

Defendants are absolved from liability. See, e.g.

, Hasty Br. 17, 25

– 26. 4

But even if Hasty and Sherman initially believed that they would be 5

housing only those detainees who were suspected of ties to terrorism, the 6

Complaint contains sufficient factual allegations that the MDC Defendants 7

eventually knew that the FBI lacked any individualized suspicion for many of 8

the detainees that were sent to the ADMAX SHU. Plaintiffs allege that Hasty 9

and Sherman received regular written updates explaining why each detainee had 10

been arrested and including “all evidence relevant to the danger he might pose” 11

to the MDC, and that these updates often lacked any indication of a suspicion of 12

a tie to terrorism. Compl. ¶ 69. 33 They further explain that “[t]he exact language 13

of these updates was repeated weekly, indicating the continued lack of any 14

33 For example, the MDC Defendants were informed that Plaintiff Abbasi was

“‘encountered’ by INS pursuant to an FBI lead; that he used a fraudulent passport to

enter the U.S. to seek asylum, and later destroyed that passport; that he requested and

was denied various forms of immigration relief; that he obtained and used a fraudulent

advance parole letter to enter the country, and that he was thus inadmissible. The

update included no statement of FBI interest in Abbasi.” Compl. ¶ 72.66 information tying [Plaintiffs] to terrorism, or tending to show that any of them 1

might pose a danger.” Id

. ¶ 73. 2

The MDC Plaintiffs relatedly allege that Hasty and Sherman knew that 3

BOP regulations require individualized assessments for detainees placed in the 4

SHU for more than seven days, yet ordered the MDC Plaintiffs’ continued 5

detention in the ADMAX SHU without performing these assessments, and Hasty 6

“ordered [his] subordinates to ignore BOP regulations regarding detention 7

conditions.” Id. ¶ 68; see also id. ¶¶ 73–74. 8

The MDC Plaintiffs further allege that Hasty and Sherman approved a 9

document that falsely stated that “executive staff at MDC had classified the 10

‘suspected terrorists’ as ‘High Security’ based on an individualized assessment of 11

their ‘precipitating offense, past terrorist behavior, and inability to adapt to 12

incarceration.’” Id

. ¶ 74. In addition, the MDC Plaintiffs allege that Hasty and 13

Sherman continued to detain them in the ADMAX SHU even after affirmatively 14

learning that the FBI lacked individualized evidence linking Plaintiffs to 15

terrorism. See id. ¶¶ 69

− 71, 74. These allegations are buttressed by Plaintiffs’ 16

assertions that they remained confined in the ADMAX SHU even after receiving 17

final clearance from the New York FBI field office and FBI Headquarters. For 1867 instance, the Complaint alleges that Benamar Benatta was cleared on November 1

14, 2001, that this information was available to the MDC, and that Benatta 2

nonetheless remained in the ADMAX SHU until April 30, 2002. See id. ¶ 188. 3

The OIG Report directly supports these allegations; as stated by one BOP 4

official, all 9/11 detainees at the MDC were placed in the ADMAX SHU and 5

subjected to the official conditions because, at least initially, “the BOP did not 6

really know whom the detainees were.” OIG Report at 19; see also Compl. ¶ 4; 7

OIG Report at 112, 126. Specific factual allegations that Hasty and Sherman 8

failed to assess whether the restrictive conditions were appropriate for 9

individual 9/11 detainees buttress the MDC Plaintiffs’ claim that the challenged 10

conditions were not reasonably related to a legitimate goal, and that Hasty and 11

Sherman were personally responsible for the treatment. 12

We recognize that the MDC Defendants may have been in a difficult 13

position when they received detainees without accompanying information 14

regarding those individuals. Record proof may eventually establish that the 15

MDC Plaintiffs’ claim is limited to the period of time that Hasty and Sherman 16

knew that the MDC Plaintiffs were being held without suspicion of ties to 17

terrorism. But we cannot conclude, at least at the motion to dismiss stage, that it 1868 was reasonable to take a default position of imposing the most restrictive form of 1

detention available when one lacks individualized evidence that the detainee 2

poses a danger to the institution or the nation. Accordingly, we conclude that 3

the MDC Plaintiffs plausibly plead a substantive due process claim against Hasty 4

and Sherman as to the official conditions. 5

The Complaint does not, however, permit an inference of personal liability 6

as to Zenk, who did not become MDC Warden until April 22, 2002, when only 7

two Plaintiffs remained in the ADMAX SHU. Fundamentally, the allegations 8

that personally identify Zenk are too general and conclusory to support 9

Plaintiffs’ claim. We therefore dismiss the MDC Plaintiffs’ substantive due 10

process claim against Zenk. 11

2. Unofficial Abuse 12

The district court properly viewed the MDC Plaintiffs’ “unofficial abuse” 13

allegations under the deliberate indifference standard commonly applied in the 14

Eighth Amendment prisoner

‐ mistreatment context. See Turkmen III

, 915 F. Supp. 15

2d at 341 & n.13. 34 Given the nature of the MDC Plaintiffs’ “unofficial abuse” 16

34 The deliberate indifference standard would clearly apply if the MDC Plaintiffs had

been prisoners entitled to the Eighth Amendment’s protection against cruel and

unusual punishment. See Walker v. Schult

, 717 F.3d 119, 125 (2d Cir. 2013). Because a69 allegations, premising liability on Hasty and Sherman’s deliberate indifference is 1

consistent with Iqbal ’s holding that Bivens defendants are liable only if, through 2

their own actions, they satisfy each element of the underlying constitutional tort. 3

See 556 U.S. at 676. 4

Prior to Iqbal

, this Court recognized claims against a supervisory defendant 5

so long as the defendant was personally involved with the alleged constitutional 6

violation. In Colon v. Coughlin

, 58 F.3d 865, 873 (2d Cir. 1995), this Court 7

identified five ways in which a plaintiff may establish a defendant’s personal 8

involvement. One is through a defendant’s “deliberate indifference.” Id

. As the 9

district court explained, the fact that a particular type of conduct constitutes 10

“personal involvement” under Colon does not inherently preclude the conduct 11

from also supporting a theory of direct liability. Turkmen III

, 915 F. Supp. 2d at 12

335–36. For instance, plausibly pleading that a defendant “participated directly 13

in the alleged constitutional violation”—one form of personal involvement 14

pretrial detainee’s rights are at least as robust as those of a sentenced prisoner, we have

applied the Eighth Amendment deliberate indifference test to pretrial detainees

bringing claims under the Due Process Clause of the Fifth Amendment. See, e.g.

, Cuoco

v. Moritsugu

, 222 F.3d 99, 106 (2d Cir. 2000). We do not address whether civil

immigration detainees should be governed by an even more protective standard than

pretrial criminal detainees.70 enumerated in Colon

, 58 F.3d at 873—could establish direct, as opposed to 1

vicarious, liability. The proper inquiry is not the name we bestow on a particular 2

theory or standard, but rather whether that standard—be it deliberate 3

indifference, punitive intent, or discriminatory intent—reflects the elements of 4

the underlying constitutional tort. See Iqbal

, 556 U.S. at 676 (“The factors 5

necessary to establish a Bivens violation will vary with the constitutional 6

provision at issue.”). 7

Our conclusion is consistent with Iqbal

, this Court’s prior rulings, see 8

Walker

, 717 F.3d at 125, and the weight of Circuit precedent. For instance, in Starr 9

v. Baca

, 652 F.3d 1202, 1206–07 (9th Cir. 2011), the Ninth Circuit determined that 10

Iqbal does not preclude Bivens claims premised on deliberate indifference when 11

the underlying constitutional violation requires no more than deliberate 12

indifference. See also Dodds v. Richardson

, 614 F.3d 1185, 1204–05 (10th Cir. 2010); 13

Sandra T.E. v. Grindle

, 599 F.3d 583, 590–91 (7th Cir. 2010); Sanchez v. Pereira– 14

Castillo

, 590 F.3d 31, 49 (1st Cir. 2009). 15

The MDC Plaintiffs’ “unofficial abuse” claim therefore survives so long as 16

Plaintiffs plausibly plead that the conditions were sufficiently serious, and Hasty 17

and Sherman “kn[e]w of, and disregard[ed], an excessive risk to inmate health or 1871 safety.” Walker

, 717 F.3d at 125 (internal quotation marks omitted); accord Cuoco

, 1

222 F.3d at 107. The MDC Plaintiffs clearly meet this standard with respect to 2

Hasty. Simply stated, their factual allegations permit the inference that he knew 3

that MDC staff subjected the MDC Plaintiffs to the “unofficial abuses” and 4

permitted—if not facilitated—the continuation of these abuses. See Compl. 5

¶¶ 24, 77–78, 107, 109

− 10. 6

For example, the Complaint contains allegations that Hasty avoided 7

evidence of detainee abuse by “neglecting to make rounds on the ADMAX 8

[SHU] unit,” as was required of him by BOP policy. Id

. ¶ 24. The MDC Plaintiffs 9

also allege that Hasty was nonetheless made aware of the abuse “through inmate 10

complaints, staff complaints, hunger strikes, and suicide attempts.” Id .; see also 11

id

. ¶¶ 77

– 78 (detailing how Hasty made it difficult for detainees to file 12

complaints and ignored the evidence when they did, and how staff officials who 13

complained were called “snitches” and were threatened). Indeed, complaints 14

about abuse of 9/11 detainees were pervasive enough to cause the BOP to 15

videotape all detainee movements and resulted in the investigations later 16

detailed in the OIG reports. Id

. ¶ 107. The MDC Plaintiffs also complain that 1772 Hasty encouraged his subordinates’ harsh treatment of the detainees by himself 1

referring to the detainees as terrorists. Id

. ¶¶ 77, 109. 2

The allegations against Sherman, because they are more general and 3

conclusory in nature, are more tenuous. For instance, Plaintiffs allege principally 4

that Sherman “allowed his subordinates to abuse MDC Plaintiffs and class 5

members with impunity. Sherman made rounds on the ADMAX SHU and was 6

aware of conditions there.” Id. ¶ 26. These allegations lack a specific factual 7

basis to support a claim that Sherman was aware of the particular abuses at 8

issue. Therefore, we hold that the MDC Plaintiffs fail to plausibly plead an 9

unofficial conditions claim as to Sherman. 35 10

3. Qualified Immunity 11

The MDC Defendants claim that qualified immunity is appropriate 12

because they were merely following the orders of BOP superiors, “with the input 13

and guidance of the FBI and INS.” See, e.g.

, Hasty Br. 33. Specifically, Hasty 14

claims that the “BOP, INS, and FBI officials ordered [him] to place ‘high interest’ 15

9/11 detainees in the ADMAX SHU, and directed that they be subject to the 16

‘tightest’ security possible.” Id

. He further argues that “[t]he sole basis for the 17

35 The MDC Plaintiffs nonetheless maintain a substantive due process claim against

Sherman as to the official conditions, as discussed supra

.73 detainees’ confinement in the ADMAX SHU—the FBI’s investigative interest— 1

was outside the scope of MDC officials’ discretion.” Id

. at 35. By extension, he 2

claims that it was reasonable to detain the MDC Plaintiffs and other “high 3

interest” 9/11 detainees in the ADMAX SHU. 4

These arguments fail. First, as with the DOJ Defendants, our qualified 5

immunity analysis in Hasty applies with equal force to the MDC Plaintiffs’ 6

conditions claim against Hasty and Sherman in this case. See Hasty

, 490 F.3d at 7

168–69. In 2001, it was clearly established that punitive conditions of 8

confinement, like those involved here, could not be imposed on pretrial 9

detainees such as the MDC Plaintiffs. As discussed above with respect to the 10

DOJ Defendants, Wolfish made clear that a condition of pretrial detention not 11

reasonably related to a legitimate governmental objective is punishment in 12

violation of the constitutional rights of detainees. See 441 U.S. at 535–39 & n.20; 13

Hasty

, 490 F.3d at 169. Furthermore, given the nearly identical claims and 14

circumstances in Hasty and this case, we see no reason to depart from our prior 15

determination that Hasty was not entitled to qualified immunity. 16

Nor is Hasty entitled to qualified immunity with regard to the unofficial 17

conditions claim. As discussed, the MDC Plaintiffs have plausibly alleged that 1874 Hasty personally violated their constitutional rights by knowing of, and 1

disregarding, an excessive risk to their health or safety. The right of the MDC 2

Plaintiffs to be free from such unofficial abuse was clearly established at the time 3

of the events in question. See, e.g.

, DeShaney v. Winnebago Cnty. Dep’t of Soc. 4

Servs.

, 489 U.S. 189, 200 (1989) (“[W]hen the State by the affirmative exercise of its 5

power so restrains an individual’s liberty that it renders him unable to care for 6

himself, and at the same time fails to provide for his basic human needs— e.g.

, 7

food, clothing, shelter, medical care, and reasonable safety—it transgresses the 8

substantive limits on state action set by

. . . the Due Process Clause.”); see also 9

Walker

, 717 F.3d at 125, 130; Cuoco

, 222 F.3d at 106. 10

Plaintiffs’ allegations, the OIG Report, and the MDC Defendants’ 11

arguments confirm that Hasty and Sherman housed 9/11 detainees for extended 12

periods of time in highly restrictive conditions without ever obtaining 13

individualized information that would warrant this treatment. Because 14

Plaintiffs’ allegations support an inference of punitive intent, and it would be 15

inappropriate to wrestle with competing factual accounts at this stage of the 16

litigation, we hold that a reasonable officer in the MDC Defendants’ position 1775 would have concluded that this treatment was not reasonably related to a 1

legitimate goal. 2

IV. Claim 2: Equal Protection

− Conditions of Confinement 3

Plaintiffs next assert a claim that Defendants subjected them to the harsh 4

conditions of confinement detailed above based on their race, ethnicity, religion, 5

and/or national origin, in violation of the equal protection guarantee of the Fifth 6

Amendment. 36 7

A. Applicable Legal Standard 8

To state an equal protection violation under the Fifth Amendment, “the 9

plaintiff must plead and prove that the defendant acted with discriminatory 10

purpose.” Iqbal

, 556 U.S. at 676. “[P]urposeful discrimination requires more than 11

intent as volition or intent as awareness of consequences.” Id. (internal quotation 12

marks omitted). “It instead involves a decisionmaker’s undertaking a course of 13

action because of, not merely in spite of, [the action’s] adverse effects upon an 14

identifiable group.” Id. at 676–77 (alteration in original) (internal quotation 15

marks omitted). 16

36 All Plaintiffs assert an equal protection claim against the DOJ Defendants. Abbasi,

Khalifa, Mehmood, and Bajracharya do not assert this claim against Zenk, and

Sachdeva and Turkmen do not make this claim against any of the MDC Defendants.76 A plaintiff can show intentional discrimination by: (1) “point[ing] to a law 1

or policy that expressly classifies persons on the basis of” a suspect classification; 2

(2) “identify[ing] a facially neutral law or policy that has been applied in an 3

intentionally discriminatory manner[;]” or (3) “alleg[ing] that a facially neutral 4

statute or policy has an adverse effect and that it was motivated by 5

discriminatory animus.” Brown v. City of Oneonta, N.Y.

, 221 F.3d 329, 337 (2d Cir. 6

2000) (internal quotation marks omitted). 7

The district court characterized Plaintiffs’ equal protection claim as falling 8

within the first category—that is, a claim that Defendants subjected Plaintiffs to 9

the challenged conditions of confinement pursuant to a policy that expressly 10

classified Plaintiffs on the basis of their race, ethnicity, religion, and/or national 11

origin. Given our reading of Plaintiffs’ allegations and arguments on appeal, we 12

will not analyze this claim, particularly as it relates to the MDC Defendants, 13

under the first equal protection theory alone. 14

B. The DOJ Defendants 15

The district court concluded that Plaintiffs failed to state an equal 16

protection claim against the DOJ Defendants, but “f[ou]nd the issue to be a close 17

one.” Turkmen III

, 915 F. Supp. 2d at 345. In view of our analysis of Plaintiffs’ 1877 substantive due process claim against the DOJ Defendants, and particularly these 1

Defendants’ roles with respect to the merger of the New York List, we hold that 2

the MDC Plaintiffs have adequately alleged an equal protection claim against 3

Ashcroft, Mueller, and Ziglar. 4

Plaintiffs’ well

‐ pleaded allegations and the OIG Report give rise to the 5

following reasonable inferences, which render plausible the MDC Plaintiffs’ 6

equal protection claim against the DOJ Defendants: (1) the New York FBI field 7

office discriminatorily targeted individuals in the 9/11 investigation not based on 8

individualized suspicion, but rather based on race, ethnicity, religion, and/or 9

national origin, and those individuals were then placed on the New York List; 10

(2) the DOJ Defendants knew about the discriminatory manner in which the New 11

York FBI field office placed individuals on the New York List; and (3) the DOJ 12

Defendants condoned the New York FBI’s discrimination by merging the New 13

York List with the INS List, thereby ensuring that some of the individuals on the 14

New York List would be subjected to the challenged conditions of confinement. 15

Plaintiffs allege that the New York FBI field office targeted individuals in 16

the PENTTBOM investigation and placed them on the New York List based on 17

race, ethnicity, religion, and/or national origin. “[T]he head of the New York FBI 1878 field office stated that an individual’s Arab appearance and status as a Muslim 1

were factors to consider in the investigation.” Compl. ¶ 42. Even more telling, a 2

supervisor in the same local FBI office, “who oversaw the clearance process[,] 3

stated that a tip about Russian tourists filming the Midtown tunnel was 4

‘obviously’ of no interest, but that the same tip about Egyptians was of interest.” 5

Id. Individuals who were arrested by the New York FBI and INS in connection 6

with a PENTTBOM lead were automatically treated as “of interest,” OIG Report 7

at 40–41, and were placed on the New York List, see id. at 53. 8

This discriminatory approach, focusing on “an individual’s Arab 9

appearance,” Compl. ¶ 42, is consistent with what is alleged to have occurred in 10

Bajracharya’s case. Bajracharya, who as noted, is a Buddhist and native of Nepal, 11

came to the FBI’s attention when an employee from the Queens County District 12

Attorney’s Office “observed an ‘[A]rab male’ videotaping outside a Queens[] 13

office building that contained the Queens County District Attorney[’s] Office and 14

a New York FBI office.” Id. ¶ 230. Investigators from the District Attorney’s 15

Office questioned Bajracharya about “why he was taking pictures,” and 16

Bajracharya “tried to explain that he was a tourist.” Id. He was arrested after 17

acknowledging he overstayed his visa and was detained in the ADMAX SHU. 1879 Given the Complaint’s allegations regarding the New York FBI’s tactics, it is 1

reasonable to infer that officials in the New York FBI targeted certain individuals, 2

including Plaintiffs, for investigation, arrest, and placement on the New York 3

List simply because they were, or appeared to be, Arab or Muslim, and not 4

because of any suspicion regarding a link to terrorism. 5

As we conclude above with respect to the substantive due process claim, 6

the DOJ Defendants were informed of the problems presented by the New York 7

List. As noted, the OIG Report reveals that by October 2001 the SIOC Working 8

Group learned about the New York List and that “officials at the INS, FBI, and 9

[DOJ] raised concerns about, among other things, whether the aliens had any 10

nexus to terrorism.” OIG Report at 53. Plaintiffs allege that a high

‐ ranking DOJ 11

official noted that individuals were detained “without any attempt” to determine 12

if they were of “actual interest,” and that the official “was concerned early in the 13

investigation that detainees were being held simply on the basis of their 14

ethnicity.” Compl. ¶ 45. The DOJ Defendants were unlikely to have remained 15

unaware of these concerns, as they “received detailed daily reports of the arrests 16

and detentions,” id. ¶ 47, see also id. ¶¶ 63–64, and Mueller “was in daily contact 17

with the FBI field offices regarding the status of individual clearances,” id. ¶ 57. 1880 In light of these allegations, we can reasonably infer that these Defendants were 1

aware that the New York FBI field office was placing individuals on the New 2

York List not because of any suspected ties to terrorism but rather because they 3

were, or were perceived to be, Arab or Muslim. 4

While the DOJ Defendants’ mere knowledge of this discriminatory action 5

by the New York FBI field office would be insufficient to allow for the reasonable 6

inference that these Defendants possessed the discriminatory purpose required 7

to state an equal protection claim, Plaintiffs’ allegations are not limited to the 8

DOJ Defendants’ knowledge alone. Rather, as we discuss in detail in the 9

substantive due process analysis above, Plaintiffs plausibly plead that Ashcroft 10

made the decision to merge the New York List with the national INS List, 11

ensuring that some of the individuals on the New York List would be placed in, 12

or remain detained in, the challenged conditions of confinement. Plaintiffs 13

further allege that Mueller and Ziglar were aware that the New York List 14

contained detainees against whom the FBI had asserted no interest and that 15

subjecting them to the challenged conditions would be facially unreasonable. In 16

ordering and complying with the merger of the New York List, the DOJ 1781 Defendants actively condoned the New York FBI field office’s discriminatory 1

formulation of that list. 2

The DOJ Defendants’ condonation of the New York FBI field office’s 3

purposeful discrimination allows us to reasonably infer at the motion to dismiss 4

stage that the DOJ Defendants themselves acted with discriminatory purpose. 5

The Supreme Court in Iqbal stated that “discrete wrongs—for instance, 6

beatings—by lower level Government actors[]

. . . if true, and if condoned by 7

[Ashcroft and Mueller], could be the basis for some inference of wrongful intent 8

on [Ashcroft and Mueller’s] part.” 556 U.S. at 683. In a similar vein, we have 9

held, in a case involving an equal protection claim under 42 U.S.C. § 1983, that a 10

reasonable factfinder could conclude that the Commissioner of the Fire 11

Department of the City of New York intended to discriminate when he decided 12

to continue to use the results of employment examinations that he knew had a 13

disparate impact based on race. See United States v. City of New York

, 717 F.3d 72, 14

94 (2d Cir. 2013). Here, it is reasonable to infer that Ashcroft, Mueller, and Ziglar 15

possessed the requisite discriminatory intent because they knew that the New 16

York List was formed in a discriminatory manner, and nevertheless condoned 17

that discrimination by ordering and complying with the merger of the lists, 1882 which ensured that the MDC Plaintiffs and other 9/11 detainees would be held in 1

the challenged conditions of confinement. 2

Contrary to the dissent’s contentions, see Dissenting Op., post at 76

− 78, this 3

case is distinguishable from Iqbal

, where the Supreme Court concluded that the 4

plaintiff failed to state an equal protection claim. In Iqbal

, there were “more 5

likely explanations” for why the plaintiff was detained in harsh conditions other 6

than his race, religion, or national origin. 556 U.S. at 681. Those more likely 7

explanations for the plaintiff’s treatment, according to the Supreme Court, were 8

that Ashcroft and Mueller supported “a legitimate policy

. . . to arrest and detain 9

individuals because of their suspected link to the attacks ,” which “produce[d] a 10

disparate, incidental impact on Arab Muslims, even though the purpose of the 11

policy was to target neither Arabs nor Muslims.” Id. at 682 (emphasis added). 12

The Supreme Court noted that “ [o]n the facts respondent alleges the arrests Mueller 13

oversaw were likely lawful and justified by his nondiscriminatory intent to 14

detain aliens who were illegally present in the United States and who had potential 15

connections to those who committed terrorist acts .” Id. (emphasis added); see also id. 16

at 683 (noting that all the allegations in Iqbal “suggest[ed] is that the Nation’s top 17

law enforcement officers

. . . sought to keep suspected terrorists in the most secure 1883 conditions available until the suspects could be cleared of terrorist activity” 1

(emphasis added)). 2

In this case, unlike in Iqbal

, it is not “more likely” that the MDC Plaintiffs 3

were detained in the challenged conditions because of their suspected ties to the 4

9/11 attacks. Indeed, as discussed at length earlier, Plaintiffs have plausibly 5

alleged that they were detained without any suspicion of a link to terrorist 6

activity and that the DOJ Defendants knew that the government lacked 7

information tying Plaintiffs to terrorist activity, but decided to merge the lists 8

anyway. 37 Thus, unlike in Iqbal

, there was no legitimate reason to detain the 9

MDC Plaintiffs in the challenged conditions and, thus, no obvious, more likely 10

37 Given the clear language used by the Supreme Court in Iqbal regarding the detainees’

connections to terrorism, 556 U.S. at 682

− 83, we understand the Iqbal Court to have

rejected as conclusory the allegation in the Iqbal complaint identified by the dissent,

which only pleads in the broadest terms that the Iqbal plaintiffs were confined without

“any individual determination” that such restrictions were “appropriate or should

continue.” See Dissenting Op., post at 81

− 82 (quoting First Am. Compl. ¶ 97, App. to

Pet. for Cert. 173a, Ashcroft v. Iqbal

, No. 07

‐ 1015 (U.S. Feb. 6, 2008), available at

http://1.usa.gov/1CfHJQF). Here, in contrast, the well

‐ pleaded allegations, as supported

by the OIG reports, allege that the DOJ Defendants made, and complied with, the

decision to merge the New York List with the national INS List, thereby ensuring that

the MDC Plaintiffs, and others, remained in the challenged conditions of confinement

despite the absence of any suspicion that they were tied to terrorism.84 explanation for the DOJ Defendants’ actions with respect to the New York List 1

merger. 38 2

The dissent also argues that we cannot plausibly infer the DOJ Defendants’ 3

discriminatory intent from the merger decision because not all of the individuals 4

on the New York List were subjected to the same level of restrictive confinement. 5

See Dissenting Op., post at 79

− 80. But the fact that some individuals of the same 6

race, ethnicity, religion, and/or national origin as the MDC Plaintiffs were 7

restrained in the Passaic County Jail, as opposed to the ADMAX SHU, hardly 8

dooms the MDC Plaintiffs’ claim against the DOJ Defendants. There is no 9

allegation that the DOJ Defendants were responsible for the assignment of 10

certain actual or perceived Arab and Muslim males to Passaic as opposed to the 11

more restrictive ADMAX SHU. See OIG Report at 17–18, 126–27, 158 (noting that 12

assignment responsibility fell largely to the arresting FBI agent). Rather, 13

Plaintiffs have plausibly alleged that the DOJ Defendants condoned and ratified 14

the New York FBI’s discrimination in identifying detainees by merging the New 15

38 Furthermore, the fact that Plaintiffs plausibly plead that the DOJ Defendants merged

the New York List, and complied with the list merger, based on punitive intent (the

substantive due process claim) arguably suggests the plausibility of the MDC Plaintiffs’

allegations that the DOJ Defendants also possessed the discriminatory intent required

for an equal protection claim. See supra Section III.B.85 York List with the INS List. The DOJ Defendants, apparently deferring to others’ 1

designation of detainees for particular facilities, thus ensured that some (and for 2

all they knew, all) of the individuals on the New York List would be subjected to 3

the challenged conditions of confinement solely on the basis of discriminatory 4

criteria. The fact that some of these individuals were actually assigned to the less 5

restrictive Passaic facility is thus a red herring. 39 6

Based on the foregoing, we conclude that the MDC Plaintiffs’ allegations 7

are sufficient to state an equal protection claim against Ashcroft, Mueller, and 8

Ziglar for their condonation of the New York FBI’s discriminatory formulation of 9

the New York List, which resulted in the MDC Plaintiffs being subjected to the 10

conditions of confinement challenged here. 11

39 Moreover, to the extent this differential assignment of class members, again

apparently by agents of the New York FBI and not the DOJ Defendants, might be

relevant to Plaintiffs’ equal protection claim, because it could suggest that the New

York FBI was not actually discriminating, it is more appropriately considered at

summary judgment. Indeed, the cases embraced by the dissent conclude that evidence

of differential treatment of members of the same class may weaken an inference of

discrimination at the summary judgment stage

. See O’Connor v. Consol. Coin Caterers Corp.

,

517 U.S. 308, 309 (1996) (summary judgment); Fleming v. MaxMara USA, Inc.

, 371 F.

App’x 115, 116 (2d Cir. 2010) (summary order) (summary judgment); James v. N.Y.

Racing Ass’n

, 233 F.3d 149, 151 (2d Cir. 2000) (summary judgment). In light of the well

‐ pleaded allegations regarding discrimination by the New York FBI, Plaintiffs have

hardly pleaded themselves out of court on this point.86 C. The MDC Defendants 1

We agree with the district court that the MDC Plaintiffs have stated a 2

plausible equal protection claim against Hasty and Sherman, although we base 3

our decision on somewhat different reasoning than that employed by the court 4

below. However, we do not agree with the district court that the MDC Plaintiffs 5

have adequately alleged this claim against Zenk. 6

Our conclusion focuses on allegations of mendacity by Hasty and Sherman 7

regarding the basis for detaining the MDC Plaintiffs in the ADMAX SHU. The 8

Complaint asserts that Hasty and Sherman “were aware that placing the 9/11 9

detainees in the ADMAX SHU unit without an individualized determination of 10

dangerousness or risk was unlawful.” Compl. ¶ 74. However, these Defendants 11

never actually undertook that “required individualized assessment.” Id. ¶ 73. 12

Nevertheless, Hasty and Sherman approved a document that “untruthfully 13

stated that the executive staff at [the] MDC had classified the ‘suspected 14

terrorists’ as ‘High Security’ based on an individualized assessment of their 15

‘precipitating offense, past terrorist behavior, and inability to adapt to 16

incarceration.’” Id. ¶ 74. In fact, neither Hasty nor Sherman “saw or considered 17

information in any of these categories in deciding to place the 9/11 detainees in 1887 the ADMAX SHU.” Id .; 40 see also id. ¶¶ 68–72 (Hasty and Sherman held the MDC 1

Plaintiffs in the ADMAX SHU knowing that they were not tied to terrorism and 2

without performing the required individualized assessment of whether Plaintiffs 3

posed a danger to the facility). 4

Based on the foregoing allegations of duplicity regarding the basis for 5

confining the 9/11 detainees, it is reasonable to infer that Hasty and Sherman 6

approved this false document to justify detaining actual or perceived Arabs and 7

Muslims in the harsh conditions of the ADMAX SHU based on discriminatory 8

intent. Cf. Reeves v. Sanderson Plumbing Prods., Inc.

, 530 U.S. 133, 147 (2000) (in the 9

employment discrimination context, “the trier of fact can reasonably infer from 10

the falsity of the explanation that the employer is dissembling to cover up a 11

discriminatory purpose”); id. (an inference of discriminatory purpose based on 12

an employer’s false explanation “is consistent with the general principle of 13

evidence law that the factfinder is entitled to consider a party’s dishonesty about 14

a material fact as affirmative evidence of guilt” (internal quotation marks 15

40 As previously noted, the term “9/11 detainees” is defined in the Complaint as non

‐

citizens from the Middle East, South Asia, and elsewhere who are Arab or Muslim, or

were perceived to be Arab or Muslim. Individuals with certain of these characteristics

who were arrested and detained in response to the 9/11 attacks constitute the putative

class in this case.88 omitted)); St. Mary’s Honor Ctr. v. Hicks

, 509 U.S. 502, 511 (1993) (“disbelief of the 1

reasons put forward by the defendant (particularly if disbelief is accompanied by 2

a suspicion of mendacity) may

. . . show intentional discrimination” in the 3

employment discrimination context). 4

The dissent argues that we cannot infer discriminatory intent from the 5

MDC Defendants’ approval of this false document, concluding that the “more 6

likely” reason for this mendacity is these Defendants’ concern for national 7

security. See Dissenting Op., post at 83

− 84. Although recognizing that the MDC 8

Defendants might be faulted for approving a false document stating that each 9

detainee had been assessed as a “High Security” “suspected terrorist[],” our 10

dissenting colleague believes Hasty and Sherman’s actions are more likely 11

explained by reliance on the FBI’s designation of each MDC Plaintiff as a person 12

“of interest” or “of high interest” to the ongoing terrorism investigation. Yet, the 13

allegations in the Complaint belie this alternative explanation for Hasty and 14

Sherman’s dishonesty. Plaintiffs allege that the “MDC Defendants were aware 15

that the FBI had not developed any information ” to tie the 9/11 detainees to 16

terrorism. Compl. ¶ 69 (emphasis added). Indeed, the MDC Defendants 17

received regular updates on the FBI’s investigation, including the dearth of 1889 evidence connecting the 9/11 detainees to terrorism. Such briefing—placing 1

Hasty and Sherman on repeated notice of the lack of any specific information 2

justifying restrictive confinement in the ADMAX SHU—renders implausible the 3

innocent explanation for their mendacity. 4

As an additional matter, the fact that the false document that Hasty and 5

Sherman approved, on its face, applied to suspected terrorists and not just actual 6

or perceived Arabs and Muslims does not undermine the reasonableness of the 7

inference that these Defendants acted based on discriminatory intent. Plaintiffs 8

allege that Hasty and Sherman approved the document even though they had 9

not performed the required individualized assessments and knew that keeping 10

“the 9/11 detainees” in the ADMAX SHU without those assessments was 11

unlawful. Id. ¶¶ 73

− 74. They further allege that, in approving the document, 12

Hasty and Sherman failed to consider the past offenses, past terrorist activity, 13

and inability to adapt to incarceration with respect to “the 9/11 detainees.” Id. 14

¶ 74. Based on Plaintiffs’ allegations about how the false document related in 15

particular to the 9/11 detainees, a group the Complaint specifically defines on 16

racial, ethnic, and religious grounds, see id. ¶ 1, it is reasonable to infer, at least at 1790 the motion to dismiss stage, that Hasty and Sherman lied in order to conceal an 1

intent to discriminate on the basis of suspect classifications. 2

Further buttressing this inference, the Complaint asserts that MDC staff 3

used racially, ethnically, and religiously charged language to refer to the MDC 4

Plaintiffs. See id

. ¶ 109 (MDC staff referred to the MDC Plaintiffs as terrorists and 5

insulted their religion); id. ¶ 110 (Saeed Hammouda and others complained “that 6

MDC staff called them ‘camel[s]’”); id. ¶ 136 (MDC staff mocked Plaintiffs’ 7

prayers and interrupted their praying by “screaming derogatory anti

‐ Muslim 8

comments”); id. ¶ 218 (during his transport and processing Hammouda was 9

called “Arabic asshole”). These allegations are supported by the OIG reports. 10

See OIG Report at 144 (noting allegations that MDC officers used racial slurs); 11

Supplemental OIG Report at 28–30 (concluding that some MDC staff verbally 12

abused detainees based on their Muslim faith, among other grounds). 13

The context in which the term “terrorist” was used at the MDC bolsters the 14

inference that the MDC Plaintiffs were believed to be terrorists simply because 15

they were, or were perceived to be, Arab or Muslim. Significantly, the term 16

“terrorist” was not used in isolation. Rather, MDC staff called the MDC 17

Plaintiffs “‘fucking Muslims’ and ‘terrorists,’” Compl

. ¶ 147, as well as 1891 “‘terrorist’ and ‘Arabic asshole,’” id. ¶ 218; see also Supplemental OIG Report at 1

28 (noting that along with the term “terrorists,” MDC staff referred to detainees 2

as “fucking Muslims” and “bin Laden Junior” (internal quotation marks 3

omitted)). 4

While most of the aforementioned comments are not directly attributed to 5

Hasty, Sherman, or Zenk, Plaintiffs do allege that the use of racially, ethnically, 6

and religiously charged language was brought to the attention of the MDC 7

Defendants through detainee complaints and reports from MDC staff, among 8

other means. Mere knowledge of the MDC staff’s discriminatory comments, of 9

course, is insufficient to infer shared discriminatory intent by Hasty, Sherman, or 10

Zenk. See Iqbal

, 556 U.S. at 676–77. However, with respect to Hasty, Plaintiffs 11

allege more than mere awareness of the MDC staff’s discriminatory treatment of 12

the MDC Plaintiffs. Plaintiffs claim that Hasty fostered the MDC staff’s use of 13

discriminatory language to refer to the MDC Plaintiffs by himself “referring to 14

the detainees as ‘terrorists,’” Compl

. ¶ 77, see also id. ¶ 109, notwithstanding 15

Hasty’s knowledge that the MDC Plaintiffs lacked ties to terrorism. Hasty’s 16

knowledge about the charged manner in which the term “terrorist” was used to 17

refer to the MDC Plaintiffs, and his personal use of the term in that context, 1892 renders even more plausible the conclusion that he approved the false document 1

justifying the MDC Plaintiffs’ detention in the ADMAX SHU based on 2

discriminatory animus. Given the fact that the 9/11 hijackers were Arab 3

Muslims, and Hasty knew that there were no articulable ties between the MDC 4

Plaintiffs and terrorism, Plaintiffs plausibly plead that Hasty referred to the MDC 5

Plaintiffs as terrorists, and treated them as if they were, simply because they 6

were, or he believed them to be, Arab or Muslim. 7

In view of the foregoing, the MDC Plaintiffs have stated a plausible claim 8

that Hasty and Sherman detained them in the challenged conditions because of 9

their race, ethnicity, religion, and/or national origin. These Defendants’ approval 10

of the false document, and Hasty’s use of charged language in the particular 11

context of the MDC Plaintiffs’ detention, support the reasonable inference that 12

Hasty and Sherman subjected the MDC Plaintiffs to harsh conditions of 13

confinement based on suspect classifications. 14

With respect to Zenk, the MDC Plaintiffs’ allegations are more limited and 15

fail to support the reasonable inference that he established or implemented the 16

alleged conditions of confinement based on animus that offends notions of equal 17

protection. 1893 D. Qualified Immunity 1

The DOJ Defendants, Hasty, and Sherman are not entitled to qualified 2

immunity on the MDC Plaintiffs’ equal protection claim. With regard to the first 3

prong of this inquiry, whether the complaint plausibly pleads that a defendant 4

personally violated the plaintiff’s constitutional rights, for the reasons stated 5

above, the MDC Plaintiffs have plausibly alleged that Ashcroft, Mueller, Ziglar, 6

Hasty, and Sherman violated their rights under the equal protection guarantee. 7

With respect to the second prong of the inquiry, it was clearly established at 8

the time of Plaintiffs’ detention that it was illegal to hold individuals in harsh 9

conditions of confinement and otherwise target them for mistreatment because of 10

their race, ethnicity, religion, and/or national origin. Plaintiffs’ right “not to be 11

subjected to ethnic or religious discrimination[] w[as]

. . . clearly established prior 12

to 9/11, and

. . . remained clearly established even in the aftermath of that horrific 13

event.” Hasty

, 490 F.3d at 160. In Hasty

, the plaintiff alleged “that he was 14

deemed to be ‘of high interest,’ and accordingly was kept in the ADMAX SHU 15

under harsh conditions, solely because of his race, ethnicity, and religion,” and 16

“that Defendants specifically targeted [him] for mistreatment because of [his] 17

race, religion, and national origin.” Id. at 174 (alterations in original). We 1894 concluded “that any reasonably competent officer would understand [those 1

alleged actions] to have been illegal under prior case law.” Id. (internal quotation 2

marks omitted). There is no reason that this analysis should not govern here. 3

Although, as the dissent notes, see Dissenting Op., post at 62, Hasty employed a 4

more lenient pleading standard than what we now utilize in assessing factual 5

allegations, this hardly prevents us from relying on its conclusions as to whether 6

certain legal principles were clearly established at the time of Plaintiffs’ 7

detention. Accordingly, in view of the sufficiency of the MDC Plaintiffs’ 8

allegations here, the DOJ Defendants, Hasty, and Sherman are not entitled to 9

qualified immunity on this claim. 10

We reverse the portion of the district court’s decision that dismissed the 11

MDC Plaintiffs’ equal protection claim against the DOJ Defendants, affirm the 12

district court’s denial of Hasty and Sherman’s motions to dismiss the MDC 13

Plaintiffs’ claim, and reverse the district court’s decision denying Zenk’s motion 14

to dismiss the equal protection claim. 15

Because the Passaic Plaintiffs were held in the general population and not 16

the ADMAX SHU, we agree with the district court that they have failed to 17

adequately plead that they were subjected to harsh conditions of confinement 1895 because of their race, ethnicity, religion, and/or national origin. Thus, we affirm 1

the district court’s dismissal of the Passaic Plaintiffs’ equal protection claim. 2

V. Claim 6: Unreasonable and Punitive Strip Searches 3

The MDC Plaintiffs claim that they were subject to unreasonable and 4

punitive strip searches while detained at the MDC, in violation of the Fourth and 5

Fifth Amendments. 41 6

A. Applicable Legal Standard 7

Determining the legal standard that applies to this claim turns on whether 8

the MDC Plaintiffs were held in a prison or a jail. See Hasty

, 490 F.3d at 172. In 9

Hasty

, we decided that the plaintiff, who was detained in the ADMAX SHU at 10

the MDC (like the MDC Plaintiffs here), should be treated in accordance with the 11

standard governing prisons. See id. Under that standard, a “regulation is valid if 12

it is reasonably related to legitimate penological interests.” Turner v. Safley

, 482 13

41 Only the MDC Plaintiffs assert this claim, which is only raised against the MDC

Defendants. Benatta and Hammouda alone assert this claim against Zenk. To the

extent that the MDC Plaintiffs’ allegations regarding the strip searches are cognizable

under the Fifth Amendment, we factor these allegations into our analysis of the

substantive due process claim, which is discussed above. See supra Section III.C.96 U.S. 78, 89 (1987). Given that the parties here do not argue for a different 1

standard, we assume that the foregoing standard applies in this case. 42 2

B. The MDC Defendants 3

The MDC Plaintiffs allege that Defendant Joseph Cuciti, a former lieutenant 4

at the MDC and not a party on appeal, was tasked with “developing the strip

‐ 5

search policy on the ADMAX [SHU].” Compl. ¶ 111. Plaintiffs further claim that 6

“Hasty ordered

. . . Cuciti to design extremely restrictive conditions of 7

confinement.” Id. ¶ 75. The reasonable inference based on these allegations is 8

that Hasty ordered Cuciti to develop the strip

‐ search policy, which was “then 9

approved and implemented by Hasty and Sherman, and, later, by Zenk.” Id. 10

Plaintiffs allege that the 9/11 detainees at the MDC were strip searched 11

upon arrival, and again after they had been escorted in shackles and under 12

continuous guard to the ADMAX SHU. They were also strip searched every 13

time they were taken from or returned to their cells, including after non

‐ contact 14

42 We note, however, that this standard governs prison regulations, see Turner

, 482 U.S.

at 89, and that the application of this standard in Hasty may have been justified because

the plaintiff in that case faced criminal charges (apparently felonies), see 490 F.3d at 147–

48 & n.1, 162 n.8, 172. In contrast, Plaintiffs here were almost exclusively charged with

civil immigration violations and were detained on that basis. While it may be that a

different standard, one more favorable to detainees, should govern the constitutionality

of searches in the context of civil immigration detention, we leave that question for

another day.97 attorney visits, when “physical contact between parties was prevented by a clear 1

partition,” OIG Report at 123, and when being transferred from one cell to 2

another. Benatta was strip searched on September 23, 24, and 26 of 2001, even 3

though he was not let out of his cell on any of those days. Numerous strip 4

searches were documented in a “visual search log” that was created for review 5

by MDC management, including Hasty. Compl

. ¶ 114 (internal quotation marks 6

omitted). 7

Plaintiffs’ allegations regarding the strip searches are supported by the 8

Supplemental OIG Report, which concluded that MDC staff “inappropriately 9

used strip searches to intimidate and punish detainees.” Supplemental OIG 10

Report at 35. That report also “questioned the need for the number of strip 11

searches, such as after attorney and social visits in non

‐ contact rooms.” Id. 12

The foregoing allegations, supported as they are by the Supplemental OIG 13

Report, are sufficient to establish at this stage of the litigation that Hasty and 14

Sherman were personally involved in creating and executing a strip

‐ search 15

policy that was not reasonably related to legitimate penological interests. Hasty 16

ordered the policy, and both he and Sherman approved and implemented it. 17

Under that policy, the MDC Plaintiffs were strip searched when there was no 1898 possibility that they could have obtained contraband. Plaintiffs have alleged that 1

Hasty and Sherman were aware of these searches either based on the search log 2

that was created for review by MDC management, or because they were 3

involved in the implementation of the strip

‐ search policy. 43 These allegations 4

give rise to a plausible Fourth Amendment claim against Hasty and Sherman. 5

See Hasty

, 490 F.3d at 172 (finding a plausible allegation of a Fourth Amendment 6

violation in the post

‐ 9/11 context where the plaintiff alleged that he “was 7

routinely strip searched twice after returning from the medical clinic or court and 8

that, on one occasion, [he] was subjected to three serial strip and body

‐ cavity 9

searches in the same room”); Hodges v. Stanley

, 712 F.2d 34, 35 (2d Cir. 1983) 10

(noting that because “there was no possibility that [the plaintiff] could have 11

obtained and concealed contraband[]

. . . the second search appears to have been 12

unnecessary”). 44 13

43 To the extent the dissent believes that we premise Hasty and Sherman’s personal

involvement entirely on these Defendants’ alleged review of the visual search log, see

Dissenting Op., post at 90, that assertion is incorrect. As discussed, Plaintiffs have

plausibly alleged that Hasty ordered the development of, and that he and Sherman

approved and implemented, the challenged strip

‐ search policy. Plaintiffs’ allegations

regarding the visual search log only buttress the inference of Hasty’s personal

involvement.

44 Although the dissent correctly notes that Hodges was decided before the Supreme

Court’s opinion in Turner

, see Dissenting Op., post at 88, we have ratified Hodges in

subsequent strip search case law. See Hasty

, 490 F.3d at 172; N.G. v. Connecticut

, 382 F.3d99 With respect to Zenk, however, the MDC Plaintiffs fail to state a plausible 1

Fourth Amendment claim. As noted earlier, Plaintiffs do not assert any claim 2

against Zenk for injuries they suffered prior to the date on which he became 3

Warden of the MDC, which was April 22, 2002. Only two Plaintiffs, Benatta and 4

Hammouda, were still detained at the MDC as of that date. These Plaintiffs have 5

not sufficiently alleged that they were unlawfully strip searched during the 6

period in which Zenk was Warden of the MDC. 7

C. Qualified Immunity 8

Hasty and Sherman are not entitled to qualified immunity on the MDC 9

Plaintiffs’ strip search claim. With respect to the first prong of the qualified 10

immunity analysis, Plaintiffs have plausibly alleged that Hasty and Sherman 11

each violated the MDC Plaintiffs’ rights under the Fourth Amendment. With 12

regard to the second prong of the inquiry, Plaintiffs’ Fourth Amendment rights 13

were clearly established at the time of the searches at issue. 14

225, 233

− 34 (2d Cir. 2004). Similarly, we reject the dissent’s attempt to confine Hodges to

its facts, only finding the absence of a legitimate penological purpose where the strip

searches are “ immediately successive.” Dissenting Op., post at 88 (emphasis added).

Like previous panels, we read Hodges as holding that a search may be unnecessary and

purposeless where “there was no possibility that [the plaintiff] could have obtained and

concealed contraband.” 712 F.2d at 35; see also N.G.

, 382 F.3d at 233

− 34. Here, consistent

with Hodges, Plaintiffs have plausibly alleged that they were strip searched when there

was no opportunity to acquire contraband, including in instances where they were

shackled and under escort, or were never permitted to leave their cells.100 In Hasty

, we denied Hasty qualified immunity on the plaintiff’s Fourth 1

Amendment claim, stating that in the wake of 9/11 “it was clearly established 2

that even the standard most favorable to prison officials required that strip and 3

body

‐ cavity searches be rationally related to legitimate government purposes.” 4

490 F.3d at 172; see also id. at 159–60 (the “right not to be needlessly harassed and 5

mistreated in the confines of a prison cell by repeated strip and body

‐ cavity 6

searches” was “clearly established prior to 9/11, and

. . . remained clearly 7

established even in the aftermath of that horrific event”). Because the MDC 8

Plaintiffs’ claim here is substantially the same as the Fourth Amendment claim at 9

issue in Hasty

, we are bound by that decision and thus deny Hasty and Sherman 10

qualified immunity on the Fourth Amendment claim in this case. 11

Accordingly, we affirm the district court’s denial of Hasty and Sherman’s 12

motions to dismiss the MDC Plaintiffs’ Fourth Amendment strip search claim, 13

and reverse the district court’s denial of Zenk’s motion to dismiss this claim. 14

VI. Claim 7: Conspiracy Under 42 U.S.C. § 1985 15

Plaintiffs’ final claim is that Defendants conspired to deprive them of their 16

rights in violation of 42 U.S.C. § 1985(3). 17101 A. Applicable Legal Standard 1

A conspiracy claim under Section 1985(3) has four elements: “(1) a 2

conspiracy, (2) for the purpose of depriving any person or class of persons of the 3

equal protection of the laws or of equal privileges and immunities under the 4

laws, (3) an act in furtherance of the conspiracy, and (4) whereby a person is 5

injured in his person or property or deprived of a right or privilege of a citizen.” 6

Hasty

, 490 F.3d at 176. 45 In addition, this claim requires that “there must be some 7

racial, or perhaps otherwise class

‐ based, invidiously discriminatory animus 8

behind the conspirators’ action.” Griffin v. Breckenridge

, 403 U.S. 88, 102 (1971); 9

accord Reynolds v. Barrett

, 685 F.3d 193, 201–02 (2d Cir. 2012). 10

B. The Sufficiency of the Allegations 11

In this case, the MDC Plaintiffs have sufficiently alleged that Ashcroft, 12

Mueller, and Ziglar met regularly and eventually agreed to subject the detainees 13

to the challenged conditions of confinement by merging, and complying with the 14

45 Section 1985(3) of Title 42 of the United States Code provides, in pertinent part, that:

If two or more persons in any State or Territory conspire

. . . for the purpose of

depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws;

. . . if one or more persons engaged therein do, or cause to be done, any act in

furtherance of the object of such conspiracy,

. . . the party so injured or deprived

may have an action for the recovery of damages occasioned by such injury or

deprivation, against any one or more of the conspirators.102 merger of, the New York List. The MDC Plaintiffs have also plausibly alleged 1

that the DOJ Defendants’ actions with respect to the New York List merger were 2

based on the discriminatory animus required for a Section 1985(3) conspiracy 3

claim, as we conclude above in our analysis of the equal protection claim. With 4

respect to Hasty and Sherman, their joint approval of the false document without 5

performing the requisite individualized assessment supports the reasonable 6

inference that these two Defendants came to an agreement to and did subject 7

Plaintiffs to harsh conditions of confinement based on the discriminatory animus 8

required by Section 1985(3). 9

Plaintiffs also allege an agreement, albeit not an explicit one, among the 10

DOJ Defendants and Hasty and Sherman to effectuate the harsh conditions of 11

confinement with discriminatory intent. Such a tacit agreement can suffice 12

under Section 1985(3). See Webb v. Goord

, 340 F.3d 105, 110–11 (2d Cir. 2003). The 13

Complaint asserts that the conditions of confinement at the MDC “were 14

formulated in consultation with the FBI.” Compl. ¶ 65. In addition, Hasty 15

ordered, and Hasty and Sherman approved and implemented, the conditions of 16

confinement “[t]o carry out Ashcroft, Mueller[,] and Ziglar’s unwritten policy to 17

subject the 9/11 detainees to harsh treatment.” Id. ¶ 75; see also id. ¶ 68. The 18103 foregoing allegations are sufficient to support the reasonable inference that the 1

DOJ Defendants, Hasty, and Sherman shared such a tacit understanding about 2

carrying out the unlawful conduct with respect to the MDC Plaintiffs’ detention. 3

Accordingly, the MDC Plaintiffs’ allegations state a plausible claim for a 4

Section 1985(3) conspiracy against Ashcroft, Mueller, Ziglar, Hasty, and 5

Sherman. 6

C. The Intracorporate Conspiracy Doctrine 7

The MDC Defendants argue that they are legally incapable of conspiring 8

with each other, and with the DOJ Defendants, because they are all part of the 9

same governmental entity—the DOJ. In Girard v. 94th Street & Fifth Avenue Corp.

, 10

530 F.2d 66, 70–72 (2d Cir. 1976), we recognized that the defendants—officers 11

and directors of a single corporation, and the corporation itself—could not 12

legally conspire with one another in violation of Section 1985(3). We reached 13

that conclusion because the defendants formed a “single business entity with a 14

managerial policy implemented by the one governing board.” Id. at 71. Thus, 15

the defendants could not satisfy the statutory requirement of a conspiracy 16

between two or more persons. Id. We also noted, however, that where various 17

entities in a single institution have “disparate responsibilities and functions,” a 18104 conspiracy claim could lie because the actions of those entities would not be 1

“actions of only one policymaking body.” Id. 2

Assuming that Defendants can ultimately invoke the intracorporate 3

conspiracy doctrine in this case, at this stage of the litigation, we cannot conclude 4

that Ashcroft, Mueller, Ziglar, Hasty, and Sherman acted as members of a single 5

policymaking entity for purposes of the MDC Plaintiffs’ Section 1985(3) 6

conspiracy claim. According to the Complaint, the former Attorney General, the 7

former Director of the FBI, the former Commissioner of the INS, and the former 8

Warden and Associate Warden at the MDC had varied responsibilities and 9

functions that distinguish them from the single corporate entity in Girard

. 10

Although Hasty and Sherman may have acted, at least in part, to implement the 11

DOJ Defendants’ policy, it is also the case that Hasty and Sherman themselves 12

established policies at the MDC. Thus, factual questions about how disparate or 13

distinct Defendants’ functions were, and how policy was created by the various 14

Defendants, preclude us from deciding as a matter of law that Defendants 15

resemble the single policymaking body of a corporation. 46 16

46 We note that the BOP and, therefore, the MDC, are subject to the supervision of the

Attorney General. See 18 U.S.C. § 4041. We have also found one unpublished district

court decision that concludes that the Attorney General and employees of a BOP facility105 D. Qualified Immunity 1

The DOJ Defendants, Hasty, and Sherman are not entitled to qualified 2

immunity on this claim. First, the MDC Plaintiffs have plausibly alleged a 3

Section 1985(3) conspiracy claim against these Defendants. In addition, as we 4

concluded in Hasty

, in the wake of the 9/11 attacks, “even without a definitive 5

ruling from this Court on the application of section 1985(3) to federal officials, 6

federal officials could not reasonably have believed that it was legally 7

permissible for them to conspire with other federal officials to deprive a person 8

of equal protection of the laws.” 490 F.3d at 177. In that case, we denied the 9

defendants qualified immunity on the Section 1985(3) claim. See id. Given the 10

sufficiency of the allegations in this case, our qualified immunity decision in 11

Hasty controls here. 12

Accordingly, we reverse the district court’s dismissal of the Section 1985(3) 13

claim against the DOJ Defendants and affirm the denial of Hasty and Sherman’s 14

motions to dismiss this claim. Because the MDC Plaintiffs fail to adequately 15

cannot conspire together under Section 1985. See Chesser v. Walton

, No. 12

‐ cv

‐ 01198

‐

JPG, 2013 WL 1962285, at *3 (S.D. Ill. May 10, 2013). However, for the reasons stated

above, neither this statutory provision nor district court case satisfy us that Defendants

here were sufficiently similar to the members of a single corporate policymaking body

such that the intracorporate conspiracy doctrine should apply.106 plead that Zenk acted with discriminatory animus, we reverse the denial of 1

Zenk’s motion to dismiss the conspiracy claim. This claim is also dismissed with 2

respect to the Passaic Plaintiffs, as they fail to adequately plead that Defendants 3

acted with the requisite discriminatory animus. 4

VII. Final Thoughts 5

If there is one guiding principle to our nation it is the rule of law. It 6

protects the unpopular view, it restrains fear

‐ based responses in times of trouble, 7

and it sanctifies individual liberty regardless of wealth, faith, or color. The 8

Constitution defines the limits of the Defendants’ authority; detaining 9

individuals as if they were terrorists, in the most restrictive conditions of 10

confinement available, simply because these individuals were, or appeared to be, 11

Arab or Muslim exceeds those limits. It might well be that national security 12

concerns motivated the Defendants to take action, but that is of little solace to 13

those who felt the brunt of that decision. The suffering endured by those who 14

were imprisoned merely because they were caught up in the hysteria of the days 15

immediately following 9/11 is not without a remedy. 16

Holding individuals in solitary confinement twenty

‐ three hours a day with 17

regular strip searches because their perceived faith or race placed them in the 18107 group targeted for recruitment by al Qaeda violated the detainees’ constitutional 1

rights. To use such a broad and general basis for such severe confinement 2

without any further particularization of a reason to suspect an individual’s 3

connection to terrorist activities requires certain assumptions about the “targeted 4

group” not offered by Defendants nor supported in the record. It assumes that 5

members of the group were already allied with or would be easily converted to 6

the terrorist cause, until proven otherwise. Why else would no further 7

particularization of a connection to terrorism be required? Perceived 8

membership in the “targeted group” was seemingly enough to justify extended 9

confinement in the most restrictive conditions available. 10

Discovery may show that the Defendants—the DOJ Defendants, in 11

particular—are not personally responsible for detaining Plaintiffs in these 12

conditions. But we simply cannot conclude at this stage that concern for the 13

safety of our nation justified the violation of the constitutional rights on which 14

this nation was built. The question at this stage of the litigation is whether the 15

MDC Plaintiffs have plausibly pleaded that the Defendants exceeded the bounds 16

of the Constitution in the wake of 9/11. We believe that they have. 17108 CONCLUSION 1

For the foregoing reasons, we affirm in part and reverse in part the district 2

court’s decision on Defendants Rule 12(b)(6) motions. More specifically, we 3

conclude that: (1) the MDC Plaintiffs have plausibly alleged a substantive due 4

process claim against the DOJ Defendants, against Hasty with regard to both 5

official and unofficial conditions, and against Sherman with regard to official 6

conditions only, and these Defendants are not entitled to qualified immunity on 7

this claim; (2) the MDC Plaintiffs have plausibly alleged an equal protection 8

claim against the DOJ Defendants, Hasty, and Sherman, and these Defendants 9

are not entitled to qualified immunity on this claim; (3) the free exercise claim is 10

dismissed as to all Defendants; (4) the MDC Plaintiffs have plausibly alleged 11

their Fourth Amendment strip search claim against Hasty and Sherman, and 12

these Defendants are not entitled to qualified immunity on this claim; (5) the 13

MDC Plaintiffs have plausibly alleged the Section 1985(3) conspiracy claim 14

against the DOJ Defendants, Hasty, and Sherman, and these Defendants are not 15

entitled to qualified immunity on this claim; and (6) the MDC Plaintiffs have not 16

plausibly alleged any claims against Zenk. We affirm the dismissal of the claims 17

brought by the Passaic Plaintiffs. 18109 The Clerk of the Court is directed to enter an order consistent with these 1

conclusions, AFFIRMING in part and REVERSING in part, and REMANDING 2

the matter to the district court for further proceedings consistent with this 3

opinion. 4R E E N A R A G G I

, Circuit Judge

, concurring i n part i n judgment and dissenting in part:

To d a y, our court becomes the first to hold that a Bivens action ca n b e

maint ained against the nation’s two highest ranking law enforc ement official s—the

Attorney General of the United States and the Dir e c to r o f th e Feder al Bureau of

Investigati on (“FBI”)—for polici es pro pounded to safeguard the nation in the

im mediate aftermath of the infamous al Qaeda terror ist attacks of Septem b e r 1 1

,

2001 (“9/11"). I r espe ctfull y dissent from this extens ion of Bivens to a context not

1

previously recognized b y Supre me Court or Second Circuit prece dent. I do not

suggest that exec utive action in th is

, or any other, context is not subject to

constituti onal constra in ts

. I conclude only that when, as here

, claim s challenge

official exec utive policy (rather than err ant conduct by a rogue official —the typical

Bivens scenar io), and particularly a national security policy pertaining to the

detention of il legal ali ens in the aftermath of terror ist attacks by ali ens operating

withi n this country, Congr ess, not the judici ary, is the appropr iate branch to decide

whether the detained ali ens should be all owed to s u e e x ecutive policym akers in

To date

, f o u r C o urts of Appeals—for the Fourth, Seven th, Ninth, and D.C

. 1

Circuits—have declined to extend Bivens to suits against exec utive branch official s

for national security actions taken after the 9/11 attacks. See Vance v. Rumsfeld, 701

F.3d 193 (7th Cir. 2012) (en banc); Mirmehdi v. United States, 689 F.3d 975 (9th Cir.

2012); Doe v. Rumsfeld, 683 F.3d 390 (D.C

. Cir. 2012); Lebr on v. Rumsfeld, 670 F.3d

540 (4th Cir. 2012); see also Ali v. Rumsfeld, 649 F.3d 762 (D.C . Cir. 2011); Rasul v.

Myers, 563 F.3d 527 (D .C. C ir. 2009).their indivi dual capacit ies for money damages.

Even if a Bivens a c ti on were proper ly recognized in this context—which I

submit it is not—I would stil l dissent insofar as the majorit y denies qual if ied

im munit y to five former feder al official s, Attorney General John Ashcrof t, F B I

Director Robert Muell er, Imm igration and Naturalization Ser vice (“INS”)

Commissioner James Zigl ar (“DOJ Defe ndants”), Metropol it an Deten tion Cen ter

(“MDC”) Warden Denn is Hasty, and Associate Warden James Sher man (“MDC

Defe ndants”), o n p l a i n t i f f s’ p o l i c y

- c h a l l en g i n g c l a i m s o f p u n i t i v e a n d d i scrim inatory

confinement and unreas onable strip searc hes. The majorit y does narro w these

claim s by all owing their pursuit only (1) by those ali ens confined in the MDC’s most

restr icti ve housing unit, the “AD MA X SHU” (“MDC Plai ntiffs”); and (2) for

restr icti ve confinement afte r defendan ts purported ly learned that plainti ffs were

being detained without indivi duali zed suspicion of their connection to te r rorism.

See Majority Op., ante at 41–42, 77. Even with the claim s so nar rowed, howe ver, I

think defendan ts are entitl ed t o qual ified imm unity because plainti ffs fai l to plead

plausible policy-chal lenging claim s that were c l early established at law in the period

Septembe r 2001 to April 2002, when one or more MDC Plai ntiffs were conf ined in

the ADMAX SHU. As the majorit y acknowledges, the 9/11 attack s kil led 3,000

2people and pres ented “unrivaled challenges and sever e exigencies” for the security

of the nation. Majority Op., ante a t 3 1

. Th e law did not then clearly alert feder al

authoriti es resp onding to these challenges that they could not hold l a w f u l l y a rrested

il legal ali ens—i d en t ified in the course of the 9/11 investigati on and among the group

targeted for recr uitm ent by a l Q aeda—in restr icti ve (as opposed to gener al)

confinement pending FBI-CIA cle a r a n c e of any ties to terror ism unless there was

prior indivi duali zed suspicion of a terror ist connection. Indeed, I am not sure that

conclusion is cl early established eve n now.

Accordingly, because I conclude b o th that a Bivens remedy should not be

extende d to plainti f f s ’ policy-chal lenging claim s and that the DOJ and MDC

d efendan ts are entitl ed, in any event, to qual ified imm unity, I dissent from th e

majorit y’s refus al to di smiss these claims. 2

In concluding it s o p in ion, the majorit y asser ts that plainti ffs’ claim s cannot be 2

dismi ssed b ecause “[i]f ther e is one guiding principl e to our nation it i s the rule of

law.” Majority Op., ante at 106. The rule of law, however

, is embodied not only in

amendments to the Constitution, but also, and first, in that document’s foundational

structure of s eparated powers

. See 1 Annals of Cong. 581 (1789) (repor ting

M a dison’s statement in first Congr ess that “if there is a principle in our Constitution,

indeed in any free Constitution, more sacre d than another, it is that which separ ates

the Legislati ve, Executive, and Judici al powers ”); see also Mass. Const. of 1780, Part

the First, art. XXX (John Adams) (separ ating powers “to the end it ma y b e a

government of laws, and not of men”); Bowsher v. Synar, 478 U.S. 714, 721–22 (1986)

(obser ving that “declared purpose o f separ ating

. . . powers of government, of

3I

. Bivens Should Not Be Extended to Plaintiffs’ Policy-Challenging Claims

A. The Narr ow Scope of Bivens Actions

On three occasions in the decade between 1971 and 1980, the Supre me Court

impl ied directly from the Constitution private damages actions against feder al

official s for all eged viol ations of rights. See Bivens v. Six Unknown Named Agents

of Feder al Bureau of Narcotics, 403 U.S. 388 (1971) (impl ying action for unlawful

course, was to ‘diffus[e] power the better to secure li ber ty,’” (quoti ng Youngstown

Shee t & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring))).

Thus, it is the rule of law that demands that a court do more than identify a possible

wrong; it must consider what authority the judici ary has to impl y a

remedy—spe cifical ly, a damages remedy—in the absen ce of legisl ative action. See

Th e Feder ali st No. 47, at 251–52 (James Madison) (Care y & McClellan, e d

. 2 0 0 1 )

(quoti ng Mon te squieu’s maxim that “were the power of judgi ng joined with the

legisl ative, the li fe and li ber ty of the subject would be expos ed to arbitrary control,

for the judge would then be the legisl ator”); INS v. Chadha, 462 U.S. 919, 951 (1983)

(stating that “hydraulic pres sure inheren t withi n each of the separ ate Branche s to

exce ed the outer limi ts of its power, even to accompli sh des irable objectives, must

be resisted”); J. Harvie Wil kinson III

, Our Structural Constitution, 104 C olum

. L.

Rev. 1687, 1707 (2004) (obser ving that “thresh old question” for judge is not, “How

should I reso lve this cas e ? ” b ut “To whom does the Constitution entrust the

reso luti on of this issue?”).

It is also the rul e of law—to which both si des i n a lawsui t have a right—that

requires a court to consider whether certain defens es, such as qual ified imm unity,

shield a particular defendan t in any event from a suit for damages. See

, e.g.,

Pearson v. Callahan, 555 U.S. 223, 231–32 (2009) (reiterating that qual ified imm unity

should be decided at earliest possible stage of li tigat ion because it is imm unity from

suit, not j ust li abili ty).

Thus, the rule of law animat es this dissent no less than the majorit y opinion.

4arre st and exce ssive force in arre s t f r o m Fourth Amendment prohibition of

unreas onable searc hes and seizures); accord C a r lson v. Green, 446 U.S. 14 (1980)

(impl ying action for deliberate indifference to prisoner ’s medical needs from Eighth

Amendment prohibition of cruel and unusual punishment); Davis v. Passman, 442

U.S. 228 (1979) (impl ying action for sex discrimi nation in feder al employment from

equal protection component of Fifth Amendment). The Cou r t h a s n e ver done so

again. Instead, it has “consistently refuse d to extend Bivens li abili ty to any new

context or n ew cat egory of defendan ts,” Corr ectional Ser vs. Cor p. v. Malesko, 534

U.S. 61, 68 (2001), emphasizing that “impl ied causes of actio n s a re disfavored,”

Ashcroft v. Iq

bal, 556 U.S. 662, 675 (20 0 9 )

, and “in most instances

. . . unjustifi ed,”

Wil kie v. Robbins, 551 U.S. 537, 550 (2007).

This reluctance to extend Bivens is grounded in our cons tit utional structure

of separ ated powers

. As the Supre me Court has explained, deciding whether to

extend Bivens focuses not on “t he merits of the par ticul ar re medy” sought, but on

“who should decide whether such a remedy should be provided,” specificall y, the

legisl ative branch of government, Congr ess, or the adjudicat ive branch

, the

judici ary. Bush v. Lucas, 462 U.S. 367, 380 (1983). For more than thirty years now,

the Supre me Court has invariably answer ed that question in favor of Congr ess. See

,

5e.g., Wi lki e v. Robbins, 551 U.S. at 562 (“‘Congr ess is in a far better positi on t han a

court to evaluate the impact of a new species of li tigat ion’ against those who act in

the public’s behalf.” (quoti ng Bush v. Lucas, 462 U.S. at 389)).

Heeding this prece dent, our own cour t, en banc, has stated “that the Bivens

remedy is an extraor dinary thing that sho u ld rare ly if ever be applied in new

contexts.” Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (en banc) (internal

quotat ion marks omit ted). Most particularly

, it should not be applied in a new

context i f any alternative proces s i s avai lable to addres s t he cl aimed constituti onal

interest or if “special factors” counsel hesitation in recog nizing a new damages

action. Bush v. Lucas, 462 U.S. at 378; accord Minneci v. Poll ard, 132 S. Ct. 617, 621

(2012); Wil kie v. Robbins, 551 U.S. at 550; Arar v. Ashcroft, 585 F.3d at 572 (collecti ng

cases). In shor t, a Bivens remedy is never “an automat ic entitl ement”; it “has to

repr esen t a judgment about the best way to impl ement a constituti onal guarantee.”

Wil kie v. Robbins, 551 U.S. at 550.

Applying these principles here

, I conclude that plaintif f s ’ constituti onal

challenges to an all eged exec utive policy for confin i n g l a w f u l l y a rr es t ed i l l eg a l ali ens

in the aftermath of the 9/11 attacks cannot pass the stringent test for recognizing a

Bivens action. In holding oth e r w is e

, the panel majorit y maint ains that plainti ffs’

6challenges to the conditions of their confinement—with the exce ption of their Free

Exer cise challenge—“stand[] firml y withi n a famil iar Bivens context,” t h u s a v o i d i ng

the need to consider factors counseling hesitation or alternative remedies. Majority

Op., ante at 31–32, 35–36. The majorit y can reach that conclusion, however

, only by 3

fashioning a new standard for construing the few recognized Bivens contexts that

employs an impermi ssibly “high level of gener ali ty.” Wil kie v. Robbins, 551 U.S. at

561 (cautioni ng against such construction); accord Arar v. Ashcroft, 585 F.3d at 572.

I respectfully disagree with that anal ysis. 4

I concur in the panel judgment dismi ssing plainti ffs’ Free Exer cise challenge. See 3

Majority Op., ante at 35–36. Not only has the Supre me Court consistently declined

to exte n d a B iven s remedy to a First Amendment claim in any context, see, e.g.,

Ashcroft v. Iq b a l, 5 56 U.S. 662, 675 (2009), but also Congr ess has provided

alternative relief under the Religi ous Freed om Restoration Act, see 42 U.S.C.

§ 2000bb et se q.

I dissent from the majorit y’s all owance of Bivens claim s against both the DOJ and 4

the M DC Defe ndants even though the former gr oup, having secured dismi ssal on

other gr o u n d s in the district court, did not rene w their Bivens challenge in

d e f e n d in g that judgment on appeal. No matter. We can affirm on any ground

supported by the recor d, see Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395,

413 (2d Cir. 2014), and the li sts-merger theory on which th e ma jority reve rses

dismi ssal was never advanced by plainti ffs’ in either the district court or on appeal,

see infr a at 43 n.28.

7B. Plai ntiffs’ Claim s Do N ot Arise in an Established Bivens Contex t

1. The Arar v

. A s h croft Standard for Identifyi ng Bivens Contex t

Is Holi stic and Cannot Be Reduce d to Two Factors

In deciding whether a claim arises in a previously recognized Bivens context,

this panel is bound by our c o u r t’s en banc decision in Arar v. Ashcroft, which

defines “context” as “a potentiall y recur ring scenar io that has simi la r le g al and

factual component s

. ” 5 8 5 F

. 3 d at 572. The majorit y pays li p service to this

definiti on, see Majority Op., ante at 29, but then signifi cantly narro ws it to demand

commonal ity only as t o the “rights injured” and the “mechanism of injury,” id. at

32. This substitut ion cannot be re conciled wit h controlling precedent. Arar’s

definiti on of context is unqual ified, contemplati ng a careful, holisti c examination of

all legal and factual c o mp o n e n ts of the “scenar io” in which a claim arises to s ee if

it is, indeed, a re curre nt example of a previously recognized Bivens context. Arar

v. Ashcroft, 585 F.3d a t 5 72. Such an inqu iry does not denominate any particular

factors—such as the “rights injured” or “mechanism of injury”—as determinative.

Nor doe s it p r o n o unce other factors—such as a challenge to an exec utive policy,

impl icati ng the exer cise of national security and imm igration authority in a tim e of

8crisis—irrelevant. By doing both here

, the majorit y not only fails to conduct the full 5

inqu iry mandated by Arar’s definiti on of context. It also fails to heed the Supre me

Court a d mo n iti on that animat es the Arar definiti on, i.e., that a Bivens

remedy—gen erally “disfavored,” Ash c r o f t v

. Iq bal, 556 U.S. at 675, and usuall y

“unjustifi ed,” Wil kie v. Robbins, 551 U.S. at 550—is never “an automat ic

entitl ement” but, rather

, the product of a considere d “judgment about the best way

to imple me n t a constituti onal guarantee” in particular circumstances, id. Such a

judgment neces sarily requir e s more than the gener al identifi cation of a

constituti onal right or a mechanism of injury. It demands consideration of all factors

counseling for and against an impl ied damages ac ti o n in the specific legal and

factual ci rcumstances pr esen ted.

It is precisely because a Bivens judgment is made only after weigh ing all

factors relevant to a given scenar io that, when another case arises pres enting simi lar

legal and factual components, a court need no t r e p e a t th e proces s. But where a

In pronouncing the national security challenges followi ng the 9/11 attacks 5

irr e le v a n t to a Bivens context determination, the majorit y cites Iq bal v. Hasty, 490

F.3d 143 (2d Cir. 2007), rev’d in part sub nom. Ashcroft v. Iq bal, 556 U.S. 662 (2009).

See Majority Op.

, a n te at 31. That reliance is mispl aced because it conflates the

question of clearly established rights—the qual ified imm unity concer n a t issue in

Iq bal v. Hasty, 490 F.3d at 159—with the distinct Bivens question of previously

established contex t.

9propose d Bivens claim pres ents legal and factual circumstance s th at were not

pres ent in an earlier Bivens case, a new asses sment is neces sary because no court has

yet made the requisit e “judgment” that a judici all y impl ied damages remedy is “the

best way” to im p l em en t c o nstituti onal guarantees in that context. Wil kie v. Robbins,

551 U.S. at 550.

That is the concer n here

. No court has ever made the jud gment that an

impl ied damages remedy is the best way to impl ement constituti onal guarantees of

substantive due p roces s, equal protection, and reaso nable searc h when lawful ly

arre sted il legal ali ens challenge an exec utive confinement policy, purported ly made

a t th e cabinet level in a tim e of crisis, and impl icati ng national security a n d

imm igration authority. In the absen ce of a judgment made in that context, the

majorit y cannot conclude that a Bivens remedy is avail able to these plainti ffs simpl y

because they asse rt rights and mechanisms of injury presen t in some other Bivens

c a s e s. Indeed, because rights and mechanisms of injury can arise in a variety o f

circumstances, pres enting different legal and factual components, these two factors

cannot alone identify c o n te x t exce pt at an impermi ssibly high level of gener ali ty.

See Wil kie v. Robbins, 551 U.S. at 561; Arar v. Ashcroft, 585 F.3d at 572.

This gener ality concer n is only exace rbated by the majorit y’s apparen t

10wil li ngness to mix and match a “right” from one Bivens case with a “mechanism of

injury” fr om another and to conclude that where ver such a right and such a

mechanism of in

jury are paired together, the resulting Bivens claim arises in an

establis h e d c o n text. See Majority Op., ante at 31–35; 37. The problem is that no

court has previously made the requisit e judgment with resp ect to that pairing, much

less made it i n a legal and factual scenar io sim il ar to the one p rese nted her e.

2. The Majority Cites No Case Affording a Bivens Remedy in a

Scenar io Legall y and Factuall y Simi lar to that Presented He re

a. Punit ive Confinement Claim

The majorit y cites two cas e s

, C arlson v. Green, 446 U.S. 14, and Thomas v.

Ashcroft, 470 F.3d 491 (2d Cir. 2006), in which feder al prisoner s were all owed to

maint ain Bivens actions for injuries sustained in confinement. See Majority Op.,

ante at 32–33. But in each case, the claim asser ted was deliberate indifference to the

prison er’s particular medical needs

. That scenar io is neither legall y nor factuall y

simi lar to a substantive due proces s claim of puniti ve pre-tr ial confinement impl ied

from all egedly purpose less restrictions. See gener all y Bell v. Wolfish, 441 U.S. 520

(1970). Indeed, the difference in context is only highli ghted by law affording prison

6

When, in Bell v. Wolfish, the Supre me Court discussed the substantive due proces s 6

prohibition on puniti ve pre-tr ial confinement, it did s o on a petiti on for a writ of

11authoriti es considerab le disc r e tion in establishing confinement polici es. See

gener all y Florence v. Bd. of C hosen Fr eeholder s, 132 S. C t. 1510, 1517 (2012).

Deliberate indifference to an indivi dual inmat e’s particular health needs was

also the basis for the constituti onal claim in Corr ectional Ser vices Corp

. v. Malesko,

534 U.S. 61. In that case, however, the Supre me Court decli ned to extend a Bivens

remedy to such a c la im when brought against a private corpor ation operating

detention facili ties under a contract w ith the Bu reau of Prisons (“BOP”). See id. at

74. Thus, the Malesko o bs er v a t i on cited by the majorit y—that “[i]f a feder al prisoner

in a BOP fa c il it y a ll eges a constituti onal de privation, he may b ring a Bivens claim

against the offending indivi dual officers, sub ject to the defens e of qual ified

imm unity,” Majority Op., ante at 33 (quoti ng Male s k o

, 5 3 4 U.S. at 72)—cannot be

read apart from the context in which it was made. It would, in fact, be extraor dinary

to conclude that in a deliberate indifference case such as Malesko, in which all claim s

against indivi duals had been dismi ssed, and in which the Supre me Court declined

to extend Bivens to the private corpor ate d e f e n d a nt, the Court was, never theless,

using a single sentenc e of dictum to sweep well beyond Carlson and to h o ld th a t

Bivens remedies are avail able to feder al prisoner s raising any constituti onal

habeas corpus, not in a Bivens action. See 441 U.S. at 526, 528.

12challenge to any aspect of their confinement against indivi dual feder al employees.

Indeed, that reading is foreclosed in this circuit by Arar, whic h o b s e r v e d that

Carlson extende d Bivens to Eighth Amendment viol ations by prison official s, after

which “the Supre me Court has declined to extend the Bivens remedy in any new

direction at al l.” Arar v. Ashcr oft, 585 F.3d at 571 (emphasis added).

In Telli er v. Fields, also cited by t he m ajority, ante at 34, a prison i nmate did

se ek a Bivens remedy for restr icti ve confinement, but the right he asser ted was

procedur al not substantive due proces s. See 280 F.3d 69, 73 (2d Cir. 2001). In short,

he complai ned that defendan ts had faile d to f ollow controlli ng procedur es for

im posing prison discipl ine. He did not contend that the restr icti ve conditio n s

themselves were substantively unreas onable, a claim with qui te different legal and

factual com ponents. 7

In s um, the panel majorit y points to n o case in which the Supr eme Cour t or

this cour t h as yet extende d a Bivens remedy to c lai ms of pun it ive confinement by

feder al pre-tr ial detainees, a n d certainly not in the unprece dented context of a

challenge to exec utive policy impl icati ng the exer cise of national s e curity and

This court has already dismi ssed procedur al due proces s challen g es to the 7

confinement policy here at issue on grounds of qu a lified imm unity. See Iq bal v.

Hasty, 490 F.3d at 167–68.

13imm igration aut hority in a ti me of crisis. 8

b. Discriminatory Confinement Claim

Nor does the majorit y cite to any case affording a Bivens remedy for all eged

discrimi natory c o n d i t i o n s of confinement. The context of the single equal protection

case cited, D a v is v. Passman, 442 U.S. 228, was employment discrimi nation by a

member of Congr ess. See Majority Op., ante at 32 n.15. That scenar io bear s almost

no factual and legal simi larity to the equal protection claim here

, which is informed

not only by the discretion afforded prison authoriti es in establishing confinement

polici es, see gener all y Florence v. Bd. of Chose n Freeh olders, 132 S. Ct. at 1517, but

also by the particular circumstances of the 9/11 a ttacks, see gener all y Ashcroft v.

The m ajority cites two cases—not controlling on this court—that al lowed federal 8

detainees to pursue a Biven s remedy for restr icti ve confinement. See Bistrian v.

Levi, 696 F.3d 352, 374–75 (3d Cir. 2012); Cale v. Johnson, 861 F.2d 943, 947 (6th Cir.

1988), abrogated on other grounds by Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir.

1999 (en banc)

. In neither case, however

, did these courts asses s “context” by

refe rence to the standard we articulated in Arar. In fact, Bistrian conducted no

Bivens extens io n a n a l y si s. Much less were these other circuit courts confronte d with

the circumstances contributing to the uniq ue scenar io presen ted here

. Insofar as the majorit y cites the dissenting opinion in Arar for the proposition

that this court has “p re su m ed t he avail abili ty of a Bivens remedy for substantive due

proces s cl aims,” Majority Op., ant e at 32 n.15 (citi ng Arar, 585 F.3d at 598 (Sack, J.,

dissenting)), it is, of course, not the dissent, but the en banc majorit y opinion in Arar

th a t c ontrols our context consideration here

. For reaso ns already discussed, th a t

controlli ng opinion requires us to look to more than the right all eged to identify an

established Bivens contex t.

14Iq

bal, 556 U.S. at 682 (obser ving that because 9/11 attacks w e r e o rder ed and

conducted by Arab Musli ms, it was “no surprise” that legit imat e l aw enforc ement

polici es to identify 9/11 assailants and to preve nt future attacks “would produce a

disparat e i ncidental impact on Arab Musli ms, even though the purpose of the policy

was to target neither Ar abs nor Musli ms”).

Even in the context of employment discrimi nation claim s, the Supre me Court

has been reluctant to construe Davis v. Pa s s man to reach beyond its particular

factual scenar io, espe ciall y where factors—not pres ent i n Da v i s— c o u n se l h es i t a t i o n.

See Chappe ll v. Wall ace, 462 U.S. 296, 297–305 (1979) (declining to extend Bivens to

enlisted soldiers’ claim s of race discrimi nation against commandi ng officers). If, as

th e ma jo rity seems to recognize, Davis cannot be construed to afford a Biven s

remedy for ever y claim of employment discrimi nation, see Majority Op., ante at 32

n.15, it can hardly be unders tood to a f f ord a Bivens remedy in the altogether

different contex t of all eged pr ison confinement discrimi nation.

c. Strip-Sear ch Claim

I n c h a l l engi ng the strip-sear ch component of their restr icti ve conf i n em en t

, t h e

MDC Plai ntiffs invoke the Fourth a s w e ll as the Fifth Amendment. The Fourth

Amendment cases cited b y the majorit y—Bivens, Groh v. Rami rez, 540 U.S. 551

15(2004), and Castro v. United States, 34 F.3d 106 (2d Cir. 2006), see Majority Op., ante

at 36–37—do not prese nt scenar ios simi lar to that here.

Th e p o te ntial ly recur ring scenar io in Bivens was unlawful arre st, exec uted

without probab le cause and with exce ssive force. See 403 U.S. at 389. That hardly

repr esen ts a judgment that an impl ied Bivens damages action is the best way to

vindicat e ever y Fourth Amendment claim

. See Majority Op., ante at 37. Rather, to

come withi n the context established by B iv e n s

, a Fourth Amendment claim must

have legal and factual components akin to unlawful a r r e s t. See gener all y Arar v.

Ashcroft, 585 F.3d at 572. Plai ntiffs here do not challenge their arre sts, which were

all supported by probab le cause to believe that each detained ali en had viol ated

imm igration laws, and which were all effected without u n d u e force. Instead,

p l a i n t i f f s c h a l l en g e a p o l i c y o f restr icti ve confinement (includi ng strip searc hes) a f t er

lawful arre st.

As for Groh and Castro, the searc hes there at issue were of private residenc es,

a factuall y disti nct scenar io pres enting different legally cognizable expe ctations of

privacy givi ng rise to different legal standards of constituti onal reaso nablenes s than

those applicable to prison searc hes. See Covino v. Patrissi, 967 F.2d 73, 75 (2d Cir.

1992) (obser ving, in § 1983 action, that constituti onalit y of pre- tr ia l d e tainee strip

16searc hes should be asses sed under “legit imate p e n ologi cal interests” standard

outli ned i n Turner v. Safley, 482 U.S. 78, 87 (1987)); accord I qbal v. Hasty, 490 F.3d

at 172.

To summarize, I resp ectfull y dissent from the majorit y ’ s c o nclusion that

plainti ff’s policy-chal lenging claim s to restr icti ve confinement arise in a famil iar

Bivens context because (1) to the extent the major i ty employs a rights-injury calcul us

to reach that conclusion, it construes conte xt at an impermi ssibly high level of

gener ali ty; and (2) no case cited by the plainti ffs or the majorit y has yet made the

requisit e judgment that a Bivens remedy is the best way to impl ement constituti onal

rights in a scenar io with legal and factual components simi lar to those pres ented

here

. In short, the context here is “fundamentall y different from anything

recognized in Bivens or subse quent cas es.” Corr ectional Se rvs. Corp

. v

. Ma le sko,

534 U.S. at 70. Thus, this c ourt must conduct the full analysis ne cessar y to e xtend

a Bivens remedy to a new con te x t. Because the majorit y declines to do so, see

Majority Op., ante at 38 n.17, I u ndertake that task he re.

C. Factors Counse li ng Against Extending Bivens to Plai ntif f s’ Poli cyChallenging Claim s

Not only do the uniq ue circumstances of this c ase not fall withi n an

established Bivens context, but a number of those circumstances also counsel

17hesitation in extending a Bivens remedy here

. See Bush v. Lu c a s

, 4 6 2 U

. S

. at 378

(instructing courts to pay “particular heed” to “any special fa c to rs counseling

hesitation befor e authorizing a new kind of feder al li tigat ion”); accord Minneci v.

Poll ard, 132 S. C t. a t 6 2 1 ; Wil kie v. Robbins, 551 U.S. at 550; Arar v. Ashcroft, 585

F

. 3 d a t 573 (character izi ng “special factors” as “ em br a c i n g c a t eg o ry

, ” w h i c h i n c l u d es

any circumstance provoking hesitation about propr iety of court entertaining

d a ma ges claim in absen ce of congres sional action). I discuss four factors in

particular, the first three of which are inextricabl y intertwined: (1) plainti ffs

challenge an official exec utive policy (rather than rogue action), impl icati ng (2) the

exec utive’s imm igration authority, (3) as well as its national security authority, and

(4) Congr ess has afforded no damages remedy to 9/11 detainees despite awarene ss

of the concer ns raised h ere

.

1. Official Executive Poli cy

Plai ntiffs challenge what they themselves character iz e a s an official

c onfinement policy propounde d by the nation’s two highest rankin g la w

enforc ement official s, the Attorney General and the FBI Director, in resp onse to the

national security threat raised by the terror ist attacks of 9/11. Neither plainti ffs nor

the panel majorit y identifi es any case affording a Bivens remedy in the context of a

18constituti onal challenge to exec utive branch policy, and certainly not to policy made

at the cabinet level. This is not surpr ising. A Bivens action has never been

considere d a “proper vehic le f o r altering an entity’s policy.” Corr ectional Ser vs.

Corp

. v. Malesko, 534 U.S. at 74. While Malesko made this obser vation in declining

to extend Bivens to a suit against a corporate de fendant, this cour t has recogn ized

en banc that it applies with equal force to claim s against indivi duals. As we

explained in Arar v. Ashcroft, all owing a private party to maint ain a Bivens act ion

against fede r a l official s for “polici es promulgated and pursued by the exec utive

branch

, not simpl y isolated actions of indivi dual fe d e r a l employees

. . . is without

p rece dent and impl icates questions of separ ation of powers as well as sovere ig n

imm unity.” 585 F.3d at 578.

That admoniti on counsels particular hesitation here w here the challenged

confinement policy was purported ly propounde d and maint ained n o t b y rogue

actors, see Kreines v. United St a te s, 33 F.3d 1105, 1108 (9th Cir. 1994) (stating that

Bivens actions are gener all y brought “agains t r ogue officers who step outside the

scope of their official duties”), but by pers ons specificall y charged by the President

19with primary res p o n s ib il ity for homeland defens e after 9/11. In this regar d, it is 9

worth recalling that the confinement policy here at issue was not the only action

taken by the n a tion in resp onse to the security exigencies pres ented by the 9/11

attacks. Withi n a week, the United States went to war. Defe ndants Ashcroft and 10

Mu e ll e r were among those senior official s who serve d as the President’s “ w a r

council,” and it was in that context that they were charged with homeland defens e. 11

These circumstances should only add to our hesitation in judici all y impl ying a

damages remedy against exec utive official s who mig ht well be unders tood to have

been acting as “the hand of the pres ident” in for mul ating pol icies responding to a

See The 9/11 Commission Report, Final R eport of the National Commission on 9

Terro r is t Attacks upon the United States (“9/11 Report”) 333 (2004), avail able at

ht tp : / / 1

. u s a

. g o v / 1 A MX O O 4 ( d e ta il in g Pr e s id e n t’ s w r it te n a s s ig n me n t of

resp onsibili ty for homeland security after 9/11 to A ttor ney General Ashcroft, FBI

Director Muell er, and CIA Director George Te n e t) ; s e e also Jack Goldsm ith, The

Terror Presidency 75 (2007) (rec o u n ti n g that, at Septembe r 12, 2001 meeting of

National Security Council, President Bush told Attorney General Ashcroft, “‘Don’t

ever let this happen a gain,’” a “simpl e sentenc e” that “set the tone for ever ything

Ashcroft’s Jus tice Department would do in the aftermath of 9/11”).

See Authorizati on for Use of Mil itary Force, Pub. L. No. 107-40, 115 Stat. 224 (Sept. 10

18, 2001).

See 9/11 Report 330 (id e ntifyi ng Attorney General and FBI Director, along with 11

Vice President, Secr etaries of State and Defe nse, Chairman and Vice-Chairm a n of

Joint Chiefs, National Security Advisor, CIA Director, and President’s Chief of Staff,

as “ to p a d visers” convene d by President on night of 9/11 and subse quently

denominated by him as his “war council ” in responding to terr orist attacks).

20national em ergen cy. 12

Nor is a different conclusion warranted here because s u b o r d inates of the

Attorney Gener al may have di sagree d among themselves about the parameters of

the challenged policy. See Majority Op.

, ante at 49. As this court has recognized, 13

a Bivens damage s action is not the appropr iate vehicle for reope ning exec utive

branch debates so that the judici ary can second-gue ss the final policy decision. See

Benzman v. Whitm an, 523 F.3d 119, 126 (2d Ci r

. 2 0 0 8 ) (obser ving that “right of

feder al agencies to make discretionary decisions when engaged in disaster relief

without the fear of judici al se cond-guessing” raise s separ ation-of-powers concer n

cautioni ng hesitation in extending Bivens (internal quotat ion marks omit ted)). The

In Ponzi v. Fesse nden, 258 U.S. 254, 262 (1922), Chief Justice (and former 12

President) Taft descr ibed the Attorney General as “the hand o f th e pres ident” in

protecting United States interests in legal procee dings.

The majorit y locates evidence of disagreement between the FBI and INS with 13

resp ect to the MDC Plai ntiffs’ continued restr icti ve confinem e n t in the ADMAX

SHU in an OIG Report’s account of a November 2, 2001 meeting. See Dep’t of

Justice, O ffice o f th e Inspector General, The Septembe r 11 Detainees : A Review of

the Treatment of A li e n s Held on Imm igration Char ges in Conne ction with the

Investigati on of the Septembe r 11 Attacks (“OIG Report”) 55–56 (April 2003),

avail able at http://1.usa. gov/1ygkjKg. This is misl eading. As I explain infra at 52–53,

the OIG Report makes plain that the d is a g r e e me nt voiced by FBI and INS

repr esen tati ves at that mee ting pertained not to whether il legal ali ens detained at

the MDC should continue to be held in the ADMAX SHU, but to whether New York

li st detainees (housed both restr icti vely at the MDC and in gener al populati on at the

Passaic County Jail) shoul d continue to be held at all.

21Fourth Circuit reache d that same conclusion in declining to extend Bivens to a due

proces s challenge to the exec utive’s designation of enemy combatants in the war on

terror ism, a matter on which the FBI and Defe nse Depar tment had all egedly

disagreed. See Lebr on v. Rumsfeld, 670 F.3d 540 (4th Cir. 2 0 1 2 )

. In so ruling,

Lebr on obser ved that the claim s not only intruded on “past exec utive deliberations

affecting sensitive matters of national security,” but also risked chill ing frank, future

policy discussions in this area “shadowed as they mig ht be by the thought that those

involved would face prolonged civil li tigat ion and potential pers onal li abili ty.” Id.

at 551.

As earlier stated, hesitation in extending Bivens does not suggest that feder al

policym akers—e ven those appointed by the President and of cabinet rank—are not

bound by constitutional constraints. See supra at 1–2. It simpl y recognizes that

where an exec utive policy is at issue, Congr ess, not the judici ary, is the branch best

suited to decide whether a damages action is the appropr iate vehicle for challenging

that policy. See Arar v. Ashcroft, 585 F.3d at 574 (explaining that “feder al system of

checks and balances provides means to consider a ll egedly unconstituti onal

exec utive policy, but a [judici all y created] private action for money damages against

indivi dual policym akers is not one of them”); see also Vance v. Rumsfeld, 701 F.3d

22193, 205 (7th Cir. 2012) (en banc) (obser ving that “normal means to handle defective

polici es and regulations is a suit under the Admini strative Pro c e d u r e Act or an

equival ent statute, not an award of damages against the policy’s author”).

2. Impl icati ng Executive’s Immi gration Authority

Further removing plainti ffs’ claim s from any recognized Bivens context, and

certainly c o u n s e li n g hesitation in extending a Bivens remedy, is the fact that the

challenged polic y i m p l i c a t es t h e ex ecut ive’s imm igration authority. As the Supre me

Court has stated—in gener al and not simpl y with resp ect to B iv e n s

— “any policy

toward aliens is vit all y and intricately interwoven wi th contemporaneous polici es

in r egard to the conduct of foreign relations, the war power, and the maint enance

o f a r e p ublican form of government,” matters “so exclusively entrusted to th e

polit ical branches of gove rnment as to b e largely immune fr om judicial inqu iry or

interfere nce” abs ent congre ssional authorizati on. Harisiades v. Shaughnes sy, 342

U.S. 580, 588-89 (1952); accor d Arar v. Ash croft, 585 F.3d at 570.

The majorit y, however

, concludes that plainti ffs’ imm igr ation status is

irrelevant to asses sing a Bivens context because il legal al iens have the s ame rights

as citi zens to be free from puniti ve or discrimi natory conditions of confinement. See

Majority Op., ante at 35. Whatever the merits of that conclusi on gener all y, it be gs

23the relevant Bivens extens ion question, which is n o t whether the Constitution

affords il legal ali ens certain rights co-exten sive with those of citi zens, but whether

a judici all y impl ied damages remedy is the best way to impl ement such rights when

the plainti ff is an il legal a li e n a n d n o t a citi zen. See Wil kie v. Robbins, 551 U.S. at

5 5 0 ; Mi r me hdi v. United States, 689 F.3d 975, 981 (9th Cir. 2012) (obser ving th a t

“imm igrants’ remedies f or vindicat ing the rights which they posses s under the

Constitution are not coextens ive wit h those affor ded to citi zens,” and de clini ng to

extend Biven s to il legal alien’s claim of wrongful detention pending deportation).

Even assuming that in the famil iar Bivens contexts of false arre st or deliberate

indifference, the law were to conclude that the disti nction between citi zens and

ali ens did not counsel hesitation in extending a Bivens remedy, that is not this case.

Plai ntiffs here seek to employ a Bivens action to challenge an exec utive policy for the

restr icti ve confinement of lawful ly a r r e s te d il legal ali ens while the FBI and CIA

determined if they had any connection to rece nt terror ist attacks by ali ens operating

in this country or if they posed a threat of future attacks. This is hardly a famil iar

Bivens context, and such an intrusion on the exec utive’s im mi g r ation authority

counsels hesitation in denominating a judici all y im plied damages remedy against

policym akers as the “best way” to impl ement constituti onal guarantees in those

24circumstances. Wilki e v. Robbins, 551 U.S . at 550.

3. Impl icati ng Executive’s National Security Authority

Plai ntiffs’ claim s also propose to inqu ire into—and dispute—the exec utive’s

exer cise of its national security author it y

. Indeed, that seems to be their primary

purpose

. This is an unprece dented Bivens con text strongly counseling h esitation.

To explain, plainti ffs’ due proces s and equal protection claim s require proof

of defendan ts’ specific intent, e ither to p unis h

, see Bell v. Wolfish, 441 U.S. at 538,

or to discrimi nate, see Washington v. Davis, 426 U.S. 229, 241–42 (1976). Such intent

may be either expr ess or impl ied. See Brown v. City of Oneonta, 221 F.3d 329, 337

(2d Cir. 2000). The majorit y here concludes that plainti ffs plausibl y imply

p roscr ibed intent through all egations that the challenged confinement policy w a s

“not reaso nably related to a legit imat e goal.” See Majority Op., ante at 55–58 (citi ng

Bell v. Wolfish, 441 U.S. at 539). It simi larly concludes that plainti ffs’ plausibly plead

that f re q u en t st ri p se arches were unreas onable relative to any legit imat e penological

interest. Se e id. at 97.

The “legit imat e goal” at issue here is national s e c u r it y

. MDC Plai ntiffs

propose to prove that t heir confi nement i n the ADMAX SHU was puniti ve and/or

discrimi natory by showing that there was no real national security need to maint ain

25them in such restr icti ve confinement pending FBI-CIA clearance, at least not in the

absen ce of prior indivi duali zed suspicion that each ali en pose d a terror ism threat.

Pla in ti f f s propose to make esse ntial ly the same showing in challenging the

reaso nablenes s of the strip-sear ch policy that accompanied restr icti ve confinement.

Thus, the exec utive’s exer cise of national s e c urity authority, far from being

irrelevant to plainti ffs’ Bivens claim s, see Majority Op., ante at 31, wil l be the critical

focus of this li tigat ion—and of the exha u s ti v e discovery that wil l undoubtedly

attend it.

The Supre me Court has never afforded a Bivens remedy to a party

chall e n g in g the exec utive’s exer cise of its national security authority. See Doe v.

R u msfeld, 683 F.3d 390, 394 (D.C

. Cir. 2012) (making obser vation in declining to

recognize Bivens action). Indeed, th e Court has obser ved—in gener al and not

simpl y with resp ect to Bivens—that “[m]atters inti mately r elated to

. . . national

security are rare ly proper subjects for judici al intervention” in the absen ce of

congres sional authorizati on. Haig v. Agee, 453 U.S. 280, 292 (1981); see Depar tment

of Navy v. Egan, 484 U.S. 518, 529–30 (1988) ( s tati ng that “unless Congr ess

specificall y has provided otherwise, courts traditi onally have been reluctant to

intrude upon th e a u th ority of the Executive in mil itary and national security

26affairs”); accord Arar v. Ashcroft, 585 F.3d a t 578 (noting that intrusion on

exec utive’s national security authority raises “grave concer ns about the separ ation

of powers ” dictated by the Constitution and, thus, counsels hesitation in extending

Bivens).

Further counseling h esitation is the judici ary’s li mit ed competency to make

national security asses sments, see Arar v. Ashcroft, 585 F.3d at 575–78, particularly

ones that could be informed by classified informati on, see gener all y Boumediene v.

Bush, 553 U.S. 723, 797 (2009) (obser ving that feder al judges do not “begin t he day

w it h briefings that may descr ibe new and serious threats to our Nation a n d it s

people”). That c o mp etency concer n is only heightened here by the extens ive

14

inqu iry that wil l be neces sary to unders tand and asses s the risk concer ns reaso nably

informing the challen g e d r e s tr icti ve confinement policy. At a mini mum

, such an

inqu iry would have to consider the 9/11 attacks, the al Qaeda terror ist organization

that order ed th e m, the attacks’ ali en perpe trators, and how those ali ens—and,

th ere fore, simi larly minded others—co uld operate in the United States wit h o u t

See also Goldsm ith, The Terror Presidency 71–74 (descr ib in g “threat matrix” 14

provided dail y to President and select official s, includi ng Attorney General and FBI

Director)

.

27detection. It would have to consider the history of al Qaeda attacks on American 15

interests prior to 9 / 1 1

, as well as terror ists’ frequent use of imm igration fraud to 16

conceal their murderous plans. It would have to consider past li fe- th r e a te n ing 17

actions by Islam ic terror ists while in f e d e r a l c u s tod y. It would have to consider 18

e v ents after 9/11—during the tim e when the challenged confinement policy w a s

maint ained—that fueled fears of fur ther attacks. 19

See

, e.g., 9/11 Report 227–29 (repor ting how, when 9/11 hijackers Mohamed Atta 15

and Marwan al Sheh hi encounter ed di fficul ty re-e ntering United States in January

2001 without pres enting student visas, they never theless pers uaded INS inspectors

to admi t them so that they could conti nue flight t raining).

Previous al Qaeda attacks included (1) the 1993 World Trade Cen ter bombing (six 16

deaths); (2) the thwarted 1993 conspiracy to bomb New York City landmarks led by

the “Blin d S h e ikh,” Omar Abdel Rahman; (3) the thwarted 1995 plot to explode

American commercial airplanes over the Pacifi c Ocean, led by Ramzi Yousef; (4) the

1996 bombing of an apartment complex housing United States Air Force pers onnel

in Khobar, Saudi Arabia (19 deaths); (5) th e 1 9 98 bombings of United States

embassies in Tanzania and Kenya (224 deaths); (6) the thwarted mil lennial bombing

of Los Angeles International Airport; and (7) the 2000 bombing of the U.S.S. Cole (17

dea th s )

. S e e U n ited States v. Farhane

, 634 F.3d 127, 132 n.4 (2d Cir. 2011); In re

Terror ist Bombings of U.S. Embassies in E. Africa, 552 F.3d 93, 103–05 (2d Cir. 1998).

See

, e.g., 9/11 Report 177–78 (discussing how conspirators in Los Angeles Airport 17

plot followed “a famil iar terror ist pattern” of using “fraud u le n t p a sspor ts and

imm igration fraud to travel” i n further ance of their s cheme).

See

, e.g., infra at 67–68 (discussing prison actions of O ma r A b d el Rahman and 18

Mamdouh Mahm ud Salim ).

Among these events were (1) the Septembe r 1 8

, 2 0 0 1 transmittal of anthrax in 19

letters sent to various government and media offices, kil li ng five, and infecting 17;

28Hesitation is also counseled by sober recognition th a t n a tional security

asses sments, “particularly in tim es of conflict, do not admit easy answer s, espe ciall y

not as products of the neces sarily li mit ed analysis undertaken in a sin g le c a s e .”

Lebr on v. Rumsfeld, 670 F.3d at 549. This contrasts sharply with “the small number

of contexts in which courts have impl ied a Bivens remedy,” where it gener all y has

“been easy to identify both the li ne between constituti onal and unconstituti onal

conduct, and the alternative course wh ich off icers should have pursued.” Arar v.

Ashcroft, 585 F.3d at 580.

Here

, the majorit y propose s to draw a li ne between gener all y and restr ic t i v el y

confining il legal al iens until they are clear ed of terr orist connections. It concludes

that gener al confinement raises no constituti onal concer ns—eve n though the ali ens

(2) the mysterious November 12, 2001 c ra sh o f a n American Airli nes plane soon after

takeoff from John F. Kennedy Airport, kil li ng all onboard ; (3) the thwarted

Dece mber 22, 2001 attempt by Richard Reid to detonate a shoe bomb onboard an

American Airli nes plane traveling from Paris to Miam i; and (4) th e January 2002

kidnapping, and Febr uary 2002 behe ading o f W a ll Stree t Journal repor ter Daniel

Pearl in Pakistan. Subse quent investigati on would li nk the la s t tw o e v ents to al

Qaeda, with 9/11 mastermind Khali d Sheikh Mohammed claim ing particular credit

for the Pearl murder. See Peter Finn, Khali d Sheik Mohammed kil led U.S. Journalist

Daniel Pe a r l, repor t finds, Wash. Post, Jan. 20, 2011, http://wapo.s t/NyvICX; Pam

Belluck, Threats and Response s: The Bomb Plot ; Unrepe ntant Shoe Bomber Is Giv en

a L if e S entence For Trying to Blow Up Jet, N.Y. Tim es, Jan. 31, 200 3

, http://n yti.m s/ZhFZJF.

29s o c o n f ined were mostly Arab and Musli m. But it concludes that restr icti ve

confinement of such ali ens (at least in the absen ce of indivi duali zed suspicion) goes

too far reaso nably to relate to national security. See Majority Op., ante at 40–41.

Setting aside the question of judici al competency to make th is n ational security

asses sment, the Supre me Court has specificall y cautioned against extending Bivens

to clai ms that propose to sho w that government official s “went too far” in pur suit

of a legit imat e o b je ctive. Wil kie v. Robbins, 551 U.S. at 556–57. That caution is

particularly apt here where

, befor e 9/11, the exec uti v e h a d n ever had to consider

whether

, and how restr icti vely, to confine il legal ali ens in the aftermath of a surpr ise

terror ist attack by ali ens operating withi n this c o u n tr y

. Much less had the courts

ever confronte d these que st i o n s. P re c ed en t p ro v i d ed n o ea sy a n swer—an d certainly

no easy negative answer —to whether it “reaso nably related” to national security to

hold lawful ly arre sted il legal ali ens in restr icti ve confinement, at least until the FBI

and CIA cleared them of terror ist connections. The law does not, after all

, invariably

demand indivi duali zed suspicion to support the restr icti ve confinement of lawful ly

arre sted pers ons to ensur e security, a point I discuss further infra at 62–63, and with

which the majority agrees. See Bell v. Wolfish, 441 U.S. at 560–62; accord Fl orence

v. Bd. of Chose n Freeh olders, 132 S. Ct. at 1523; Whitl ey v. Albers, 475 U.S. 312, 316

30( 1 9 8 6 ) ; B lo ck v. Rutherford, 468 U.S. 576, 577 (1984); see also Majority Op., ante at

58 n.31.

Where plainti ffs’ policy-chal len g ing claim s thus turn on a “reaso nably

re l a t ed ” i n q

u i ry i m p li cating national security decisions made wit h i n “ a c o m p l ex a n d

rapidly changing legal framework bese t with critical legal judgments that have not

yet been made, as well as policy choices th a t are by no means easily r eached,” we

not only confront a new Bivens context, but also one strongly counseling hesitation.

Arar v. Ashcroft, 585 F.3d at 575, 580 (declining to extend Bivens to claim requiring

“inqu iry into the perce ived need for the [challenged] policy, the threats to which it

resp onds, the substance and sources of the intell igence used to formulate it, and the

propr iety of adopti ng specific resp onses to particul ar thre ats”).

Again, this does not mean that exec u t i v e d et en t i o n a nd confinement decisions

impl icati ng national security are insulat ed from judici al review. The Constitution’s

guarantee of habeas corpus ensur es against that. See Boumediene v. Bush, 553 U.S.

at 771; Hamdi v. Rumsfeld, 542 U.S. 507, 525, 533 (2004); see also Bell v. Wolfish, 441

U.S. at 526. But the fact that the Constitution exp r e ssly affords a li ber tysafeguarding remedy against the so v ere ign e ven when national secur ity conce rns

are pres en t is h a r dly an invit ation to the judici ary to impl y a damages remedy

31against indivi dual exec utive official s in th e s e c ir c umstances. See Lebr on v.

Rumsfeld, 670 F.3d at 550 (drawing disti nction). Such a decision is more prope rly

made by the legislati ve rather than the adjudicati ve br anch of gover nment. 20

Thus, where

, as here

, plainti ffs urge this court to impl y a damages a c ti on

where none has been provided b y C o n g r e ss so that pers ons unlawful ly in this

country can challenge exec utive policy relatin g t o n a t ional security in a tim e of crisis,

a proper regar d for separ ation of powers counsels hesitation in judici all y extending

Bivens to that new context. Indeed, I would decline to extend Bivens to plainti ffs’

policy-chal lenging claim s for this reaso n alone. There is, however

, yet one further

factor counseling hesitation.

4. Congr ess’s Fail ure To Provide a Damages Re medy

The judici ary wil l not impl y a Bivens action where Congr ess itself “has

p r o vided what it considers adequate remedial mechanisms for constitutio n a l

Were Congr ess to afford compe nsatory relief in the circumstances at issue, it is 20

hardly obvious that it would place the burden on indivi dual official s rather than the

sovere ign on whose behalf they acted. See gener all y John Paul Stevens

, Reflections

About th e Sover eign’s Duty to Compensate Victi ms Harmed by Constitutional

Violat ions, Lawyers for Civil Justice Membership Meeting (“Stevens Reflections”)

11 (May 4, 2015), avail able at http://1.usa.gov/ 1Ih51e4 (proposing that “s overe ign,

rather than its indivi dual agents,” compensate any p e r s o n s whose rights were

viol ated in course of 9/ 11 investigati on).

32viol ations.” Schweiker v. Chilicky, 487 U.S. 412, 423 (1988 )

. Even where a

congres sionall y pres cribed remedy is lacki ng, however

, courts wil l hesitate to

extend Bivens to a new context where there is r eason to think Congr ess ’s inacti on

is not “inadvertent.” Id.; accord Dotson v. Griesa, 398 F.3d 156, 167 (2d Cir. 2005).

That conclusion is warranted here

, where Congr ess has not provided a dama ges

remedy to post-9/11 detainees despite its awarene ss that (1) DOJ was arre sting and

detaining il legal ali ens as part of its resp onse to 9 / 1 1

, (2) DOJ mig ht pres s hard

against constituti onal bounds in its efforts to safeguard national security, and

(3) concer ns had ar isen per taini ng to the detention of Arab an d Musli m ali ens.

As to the first point, Attorney General Ashcroft and FBI Director Muell er (as

well as other DOJ official s) repe atedly testified befor e Congr ess that the arre st of

il legal al iens was part of D OJ’s post-9/ 11 strategy against terror ism. 21

As to the second point, when Congr ess enacted the PATRI OT Act in October

See , e.g., De p’t of Justice Oversight: Prese rving Our Freed oms While D efending 21

Against Terror ism: Hearing Before the S. Comm. on the Judici ary, 107th Cong. 312

(Dec. 6, 2001) ( s ta te ment of John Ashcroft, Att’y Gen. of the United States)

(explain in g “ deliberate campaign of arre st and detention to remove suspected

terror ists who viol ate the l aw from our streets,” noting that “INS has detai ned 563

indivi duals on imm igration viol ations” and that BOP had “acted swiftl y to intensify

security precautions in connection with al Qaeda and other terror ist inmat es,” and

adding that DOJ “has briefed members of the House, the Senate and their staffs on

more than 100 occasions”).

332001, it antici pated possible DOJ overr eaching and required th e Depar tment’s

Inspector General to review and repor t semi-annuall y to Congr ess on any identifi ed

abuses of civil rights and civil li ber ties in fighti ng terror ism. Indeed, it is pursuant 22

to this legisl ative mandate that t he Inspector General provided Congr ess with the

very OIG Reports upon which plainti ffs re ly i n pleading their complai nt.

As to the third point, th e se OIG Reports discussed concer ns about the

tr e a tm e n t o f confined Arab and Musli m ali ens, and Congr ess’s attention to these

concer ns is evide n t in th e public recor d. Des pite its awarene ss of these matters, 23

however

, neither in enacting the PATRI OT Act, nor in the more than thirteen years

that have now followed—during which tim e portions of the PATRI OT Act were reauthorized five tim es —has Congr ess afforded a damag es remedy to ali ens who 24

See U n i t i n g a n d St re n g t h ening America by Providing Appropr iate Tools Requi red 22

to In te rcept and Obstruct Terror ism Act of 2001 (“PATRI OT Act”), Pub. L. No.

107-56, § 1001, 115 Stat. 272, 391 (2001).

See

, e.g., Overs ight Hearing: Law Enforce ment and Terror ism: Hearing Before the 23

S. Comm. on the Judici ary, 108 th C o ng. 192 (July 23, 2003) (questioni ng by Sen.

Pa trick Leahy of FBI Director Muell er about OIG repor t “all eging, among oth e r

things, the abuse of imm igrants being held in Feder al custody,” particularly

“Musli m and Arab imm igrants being held on civil viol atio n s of our imm igration

laws”).

See Uniti ng and Stren gthening America by Fulfi ll ing Rights and Ensu r ing 24

Effective Discipli ne Over Monitoring Act of 2015 (“USA FR EEDOM Act”), Pub. L.

No. 114-23, 129 Stat. 268 (2015); PATRI OT Sunsets Extension Act of 2011, Pub. L. No.

34were, or in the future could be, detained in connection with terror ism investigati ons.

We must pres ume that Congr ess was aware that a lt e r n ative, albeit noncompensatory, remedies were avail able to challenge unconstituti onal confinement,

notably, habeas corpus and the “remedial me chanisms established by the BOP,

includi ng suits in f e d eral court for injuncti ve relief.” Corr ectional Ser vs. Corp

. v.

Malesko, 534 U.S. at 74 (obser ving that injuncti ve relief has long been recognized as

proper means for altering unconstituti onal policy); see Bell v. W o lfish, 441 U.S. at

526 (habeas corpus r eview). Where Congr ess, with awarene ss of the con cerns at 25

issue, as well as the remedies avail able to addres s them, legisl ates repe atedly in an

112-14, 125 Stat. 216 (2011); Act to Extend Expiring Provisions of the USA PATRI OT

Improvement and Reauthorization Act of 2005 and In te ll igence Reform and

Terror ism Prevention Act of 2004 until Febr uary 28, 2011, Pub. L. No. 111-141, 124

Stat. 37 (2010); USA PATR IO T A c t Additional Reauthorizing Amendments Act o f

2006, Pub. L. No. 109-178, 120 S ta t. 278 (2006); USA PATRI OT Improvement and

Reauthorization Act of 2005, P ub. L. No. 109-177, 120 Stat. 192 (2005).

MDC Plai ntiff Ba lo c h was among the il legal ali ens arre sted in the 9/11 25

i n v es tigat ion who filed a habeas petiti on to challenge his confinement. See T u rk m en

v

. A s h c r oft, No. 02 CV 2307 (JG), 2006 WL 1662663, at *5 (E.D.N.Y. June 14, 200 6 )

(“Turkmen I”) (stating that Baloch filed habeas p e tit ion and six weeks later was

transfer red from ADMAX SHU to gener al populati on), aff’d in part, vacated in part,

589 F.3d 5 4 2 ( 2 d C ir

. 2009) (“Turkmen II”); see also OIG Report 87, 99–100, 102

(repor ting other detainees’ filing of habeas petitions).

The Ninth Circuit has cited the avail abili ty of a habeas remedy (and plainti ffs’

pursuit of such relief) as a factor counseling hesitation in extending Bivens to claim s

of unlawful detention. See Mirmehdi v. Uni ted States, 689 F.3d at 982.

35area without affording a damages remedy, there is strong reas o n to think that its

inacti on was not inadvertent and, thus, for the judici ary to hesitate befor e extending

Bivens to that area. See Kl ay v. Panetta, 758 F

. 3 d 3 6 9

, 376 (D.C

. Cir. 2014) (“If

Congr ess has legisl ated pervas ively on a particular topic but has not authorized the

sort of suit that a plainti ff seeks to bring under Bivens, resp ect for the separ ation of

powers demands that courts hesitate to impl y a remedy.”); Lebr on v. Rumsfeld, 670

F

. 3 d a t 551–52 (obser ving that where “Congr ess was no idl e bystander ” and had

“devoted ext e n s ive attention” to the concer ns at issue in case but nonetheles s did

not create damages remedy, court could infer that “congres sional inacti on ha[d] not

been inadvertent”); cf. Arar v. Ashcroft, 585 F.3d at 573 (s tati ng that “complexit y”

of remedial imm igration scheme c r e a te d (and frequently amended) by Congr ess

would ordinarily warrant “strong inference that Congr ess intended the judici ary to

stay its hand and refr ain from creating a Bivens action in t his context”).

Accordingly, insofar as plainti ffs invoke Bivens to chall e n g e an official

exec utive policy for the restr icti ve confinement and strip searc hing of il legal ali ens

in the aftermath of the 9/ 11 attacks, I conclu de that their claim s m ust be di smissed

because a Bivens remedy has not b e e n e x te n ded to such a context, and factors

strongly counsel against this court doing so here

. If il legal ali ens should be afforded

36a damages remedy to challenge an exec utive p o li c y impl icati ng imm igration and

national security authority, that decision should be made by Congr ess r ather than

by the courts. See Arar v. Ashcroft, 585 F.3d at 580–81 (“Congr ess is the appropr iate

branch ” to decide whether policy decisions “directly related to th e security of the

populati on a n d th e foreign affairs of the country” should be “subjected to the

influence of li tigat ion brought by aliens”).

II. Defendants Are Entitled to Qualified Immunity

A. The Conc ept of Qualifi ed Imm unity

Whether or not a Bivens action is avail able to challenge the executive policy

at issue, defendan ts are entitl e d to dismi ssal on grounds of qual ified imm unity.

Quali fied imm unity—a concept derived from common law—sh ie lds feder al and

s ta te o f ficial s from claim s for money damages “unless a plainti ff pleads facts

showing that (1) the official viol ated a statutory or constituti onal right, and (2) the

right was ‘clearly established’ at the tim e of the challenged conduct.” Ashcroft v. alKi d d

, 1 31 S. Ct. 2074, 2080 (2011) (quoti ng Harlow v. Fitzgerald, 457 U.S. 800, 8 1 8

(1982)). For law to be clearly estab li s h e d

, it is not neces sary to identify a case

directly on point. But prece dent must have spoken with sufficien t c la r ity to have

placed the constituti onal question “beyond debate.” Id. at 2083; accord Carr oll v.

37Carman, 135 S. Ct. 348, 350 (2014). Put another way, the law must have made “the

contou r s ” o f the asser ted right “sufficientl y clear that ever y reaso nable official

would have unders tood that what he is doing viola te s th at right.” Ashcroft v. alKi dd, 131 S. Ct. at 2083 (internal quotati on marks omitt ed).

Quali fied imm unity affords such a broad shield to protect not simpl y

government o fficial s but government itself, specificall y, “government’s abili ty to

perfor m its traditi onal functions.” Wyatt v. Cole, 504 U.S. 158

, 167 (1992). Thus,

qual ified imm unity is afforded to ensur e both that talented pers ons are not deterr ed

from entering public service by the threat of crippling damages suits, see id., and

that those in government service act “with the decisiveness and the ju d g ment

required by the public go o d

, ” S c h euer v. Rhodes, 416 U.S. 232, 240 (1974); accord

Fil arsky v. Delia, 132 S. Ct. 1657, 1665 (2012); Richardson v. McKnig ht, 521 U.S. 399,

409 (1997) (descr ibing “unwarranted tim idi ty” on the part of those engaged in

public’s business as “most important special government imm unit y -producing

concer n”); Amor e v. Novarr o, 624 F.3d 522, 530 (2d Cir. 2010) (recognizing that

qual ified imm unity is animat ed by “concer n that for the pu b li c b enefit, public

official s be able to perfor m their duties unflinchi ngly and wit h o ut constant dread

of retaliati on”).

38Toward this end, qual ified i m m u n i t y serve s to give public official s “bre athing

room to make reaso nable but mist a k e n judgments” without fear of disabling

li abili ty. Messer schmidt v. Mil lender, 132 S. Ct. 1235, 1244 (2012) (internal quotat ion

marks omit ted). Indeed, the standard is s uffici ently for givi ng that it protects “‘all

but the pl ainly incompetent or those who knowingly viol ate the l aw.’” Ashcroft v.

al-Ki dd, 131 S. Ct. at 2085 (quoti ng Mall ey v. Briggs, 475 U

. S

. 335, 341 (1986)). 26

It is difficu lt to imag ine a public good mor e d e ma n d ing of decisiveness or

more tolerant of reaso nable, even if mistak en, judgments than the protection of this

nation and its people from further terror ist attacks in the imm ediate aftermath of the

horr ific events of 9/11. Whatever lessons hindsight mig ht teach about how best to 27

achieve this legit imat e government objective withi n our system of laws, I ca n n o t

The Supre me Court’s r ecent r epeated unan imou s awards of qual ified imm unity 26

emphasize the narro w cir c u ms tances in which government official s may be held

pers onally li able for their a c ti o n s in suits for money damages. See

, e.g., Taylor v.

Barkes, 135 S. Ct. 2042, 2044 (2015); Carr oll v. Carman, 135 S. Ct. at 350–52; Lane v.

Franks, 134 S. Ct. 2369, 2383 (2014); Wood v. Moss, 134 S. C t. 2 0 5 6

, 2 0 7 0 (2014);

Plum hoff v. Richard, 134 S. Ct. 2012, 2023–24 (2014); Stanton v. Sims, 134 S. Ct. 3, 7

(2013).

See gener all y Stevens Reflections 9 (advocating absolute imm unity for “dedicated 27

public official s”—includi ng Ashcroft and Muell er—who, in aftermath of 9/11, were

“attempti ng to mini mize the risk of another terrorist att ack,” while proposing that

feder al government assume resp onsibili ty for compensating a n y p erso ns whose

rights were violated).

39c o n c lude that defendan ts here were plainl y incompetent or defiant of establis h e d

law in instit uting or maint aining the challen ged restr icti ve confinement policy.

Insofar as the majorit y decides otherwise based on its determinations that plainti ffs

have (1 ) p la u sibly pleaded viol ations of Fourth and Fifth Amendment rights, (2)

which rights were clearly established at the tim e of defendan ts’ actions, I

resp ectfull y dissent. As to the second point in particular, I think the majorit y defines

established law at an im permissibly “high l evel of gener ali ty.” Id. at 2084.

B. Punit ive Confinement

The M DC Plai ntiffs having been l awfull y arre sted for, but not yet convicted

of, viol ations of feder al imm igration law, their confinement status was that of pretrial d et a i n ee s. T h e F i f t h Amendment guarantee of substantive due proces s does not

permit pre-tr ial detainees to be subjected to confinement, or to restr icti ve conditions

of confinement, “for the purpose of punishment.” Bell v. Wol fish, 441 U.S. at 538.

At the sam e t ime, due proces s does not preclude restrictive confinement “incident

of some other legit imat e government purpose .” Id. In short, pre-tr ial confinement,

or a condition of pre-tr ial confinement is not deemed “punishment” in the abstract,

but only by virtue of the purpose for which it is i mposed.

To maint ain a puniti ve confinement claim, th e n

, a pre-tr ial detainee must

40plausibly plead that a defendan t imposed restr icti ve confinement with the specific

intent to punish. See id. Where

, as here

, plainti f f s p r o p o s e for such intent to be

impl ied, they must plead facts sufficient to admit a plausible inference that the

challenged c o nditi ons of their confinement were “not reaso nably related to a

legit imat e goal” but, rather

, were “arbitrary or purpose less.” Id. at 539. The burden

is signifi cant because a reaso nable relatednes s inqu iry is not an end in itself. Rather,

it is a proxy for determining a defendan t’s true intent. Thus, a p la in ti ff does not

plausibly plead puniti ve intent simpl y by all eging s o me mism atch between

challenged conditi ons of confinement and the legit imat e goal they are intende d to

serve

. See

, e.g., id. at 558–60 (rejecting challenge to routine body cavity searc hes of

p r e -trial detainees followi ng contact visit s even though there had been only o n e

repor ted attempt to smuggle contraband into facili ty in body cavi ty); accord Block

v. Rutherford, 468 U.S. at 587 (rejecting lower courts’ c h a r a c te rization of total ban

on contact visit s as exce ssive in relation to security and other interests at stake). The

mismatch must be so glaring as to make the challenged condition “arbitra r y o r

purpose less” relative to any legit imat e goal. Mo r e o v er, when the profes sed

legit imat e goal is security, the plausibil ity of any arbitrary or purpose less asser tion

must be cons id e r ed in li ght of the “wide-ranging defer ence” that the law accords

41prison admini stra t o rs i n d et er m i n i n g t h e c o nditi ons neces sary to pres erve discipl ine

and security. Bell v. Wolfish, 441 U.S. at 5 4 7 (cautioni ng that courts must not

depend on their own “idea of how be s t to operate a detention facili ty”); accord

Florence v. Bd. of Chose n Freeh olde rs, 132 S. Ct. at 1517; Trammell v. Keane, 338

F.3d 155, 163 (2d Cir. 2003).

Further, as the Supre me Court rece ntly explained in r e je cting an earlier

discrimi n a to ry confinement challenge to the very policy here at issue, plainti ffs

cannot carry their pleading burden by all eging facts that admit only a “possibili ty”

of defendan ts’ proscr ibed intent. Ashcroft v. Iq bal, 556 U.S. at 678. “[F]acts that are

merely consistent with a defendan t’s li abili ty

. . . stop[] short of the li ne between

possibili ty and plausibil ity o f e n titlement to relief.” Id. (internal quotat ion marks

omit ted). This is particularly so where “more li kely” legit imat e expla nations for

defendan ts’ actions are “obvious.” Id. at 681–82.

1. DOJ D efendan ts

The panel majorit y concludes—and I agree—that plainti f f s fail plausibly to

plead that the DOJ hold-until -cleared policy, as app li e d a b initio to il legal ali ens

arre sted in the course of the FBI’s 9/ 11 investigati on, impl ies the DOJ De fendants’

puniti ve i ntent. The “obvious” and “more l ikely explanation[]” for the policy was

42the government’s legit imat e interest in national security, specificall y, in identifyi ng

and appreh ending any per sons connected with the 9/11 terror ist attacks and in

detecting and preve nting future atta c k s

. Id. In pursuing those goals, the DOJ

Defe ndants were entitl ed to as sume that s ubordinates would la w f u ll y impl ement

th e h o ld

- u ntil -cleared policy. See Majority Op., ante at 40; see also Turkmen v

.

Ashcroft, 915 F. Supp . 2d 314, 340 (E.D.N.Y. 2013) (“Turkmen III”).

Where I depart from the majorit y is in its determina ti o n th at plainti ffs

plausibly plead that the DOJ Defe ndants’ legit imat e nationa l security purpose

transfor med to proscr ibed puniti ve intent by November 2001, when they approved

merger of the FBI New York detainee li st with the INS national detainee li st, thereb y

ma intaining the MDC Plai ntiffs in the ADMAX SHU pending FBI-CIA clea r a n c e

without indivi duali z e d s u spicion of these ali ens’ connection to terror ism. See

Majority Op.

, a n te at 40–42. Much less can I agree that clearly established law

alerted ever y reaso nable official that such actions viol ated su bs t a n t i v e d u e p ro c ess. 28

Plai ntiffs themselves never raised this li sts-merger theory, either in their briefs to 28

this court or in the district court. The majorit y, however

, views merger of the New

York and national li sts as the critical event be c a use it construes the pleadings to

all ege that “il legal ali ens were being detained in puniti ve conditions of confinement

in New York” with “no suggestion that those detainees were tied to terror ism exce pt

for the fact that they were, or were perce ived to be Arab or Musli m.” Majority Op.,

ante at 40–41. This is not apparent in the recor d.

43First, insofar as the November 2001 li sts-merger decision is the critical factor

For exampl e

, w h e n MDC Plai ntiff Purna Raj Bajracharya was placed in

restr icti ve co n f i n em en t

, f ed er al official s knew that, approximately two weeks befor e

the 9/11 attacks, he had been obser ved videotaping a Queens buildi ng that housed

both a New York FBI unit and the Queens County District Attorney’s Office. See id.

at 19. They further knew that when Bajracharya—who had li ved il legall y in th e

United States for five years—was questioned about this conduct, he falsely claim ed

to be a tourist. While these circumstances did not conclusively li nk Bajracharya to

terror ism, no more so did Zacarias Moussaoui’s pre-9/ 11 interest in flig ht simul ator

training for large jets. What both cir c u ms ta n ces did provide, however

, was

indivi duali zed suspicion for investigati ng these mens’ ties to terr o r is m, w hich in

Moussaoui’s case led to his conviction for participati on in the 9/11 conspiracy. See

United States v. Moussaoui, 591 F.3d 263, 266 (4th Cir. 2010).

Further, New York li st detainees were not uniformly detained in “puniti ve”

conditions—by which I unders tand the majorit y to be refe rring to highly restr icti ve

c o n d i t i o n s o f confinement rather than to the intent with which such restr icti o n s w er e

imposed. Much les s w e r e th ey so confined for no reaso n other than ethnicity or

religion. This is evident from the fact that the vast majorit y of the approximately 300

per s o n s o n th e New York li st at the tim e of the merger decision were Arab or

Musli m. Never theless, no more than 84 detainees were ever restr icti vely confined

in the ADMAX SHU. See O IG R e p o r t 2

, 22, 111. The remainder were held in

gener al confinement at the Passaic County Jail. The designation difference appears

gener all y to have been based on whether an arre sted il legal ali en was designated

“high interest,” “of interes t,” or “interest undetermined” to the 9/11 investig ation.

See OIG Report 18, 111 (explaining that arre sted il legal ali ens in first category were

gener all y held in high security confinement at MDC

, w h il e p erso ns in latt er two

catego ries were gener all y held in less restr icti ve confinement at Passaic County Jail).

Never thele s s, because the OIG Report provides no specifics on this point, and

because plainti ffs all ege that some of them were detained at the MDC “even though

they had not been classified ‘high interest,’” Fourth Am. Compl. ¶ 4. I do not

p u r sue the matter further. Rather, I procee d to explain why plainti ffs fail, e v e n

under the majorit y’s li sts-merger theory, plausibly to plead a claim for puniti ve (or

discrimi natory) confinement, much less one s upported by clearly established law.

44in the majorit y’s identifi cation of a plausible puniti ve confinement claim

, plainti ffs

fail to plead a sufficient factual basis for ascribing the merger decision to any of the

three DOJ Defe ndants. See Ashcroft v. Iq bal, 556 U.S. at 678. Their all egations—that

Attorney General Ashcroft “order ed that” New York li st detaine e s “ b e detained

until cleared and otherwise treated as ‘of interest,’” and that FBI Director Mu e ller

and INS Commissioner Zigl ar “were full y informed of this decision, and compli ed

w it h it,” Fourth Am. Compl. (“Compl.”) ¶ 47—are plainl y not based on pers onal

knowledge and, in fact, are belied by the very OIG Re p o r t on which they rely to

support their claim s, see id. ¶ 3 n.1. That repor t s tate s qui te clearly that it was

Associate Deputy Attorney General Stuart Levey who, at the end of the November

2, 2001 meeting with FBI and INS repr esen tati ves, “decided that all the detainees on

the New York li st would be added to the INS Custody List and held without bond.”

OIG Report 56. To be sure, plainti ffs profes s to incorporate the OIG Report into their

pleadings only to the extent it is not “con tr a d ic te d ” by their own all egations.

Compl. ¶ 3 n.1. But that begs the question of whether there is sufficient factual

matter—either in plaintiffs’ allegations o r in the OIG Repor t—plausi bly to ascribe

merger resp onsibili ty to any of the DOJ Defe ndants. There is not. Nothing in the

OIG Report indicates that Levey’s merger decision was ever order ed or endors ed

45by Attorney Gener al Ashcroft, FBI Director Muell er, or INS Commissioner Ziglar,

or eve n communi cated to them.

In concluding otherwise, the majorit y asser ts that OIG identifi cation of Levey

as the li sts-merger decisionmaker does not absolve Ashcroft o f r e s p onsibili ty

because the OIG appears not to have asked Ashcroft about his role in that decision.

See Majority Op., ante at 50. To the extent this impl ies OIG negligence or oversight,

that hardly supplies a factual basis for inferring Ash c r o f t’s resp onsibili ty. See

Ashcroft v. Iq

bal, 5 56 U.S. at 678. In any event, negligence is belied by the OIG’s

detailed 198-page, single-s p aced repor t, which includes a careful discussion of

when, how, and by whom the merger decision wa s made. See OIG Repor t 55–57;

see also C ompl. ¶ 3 n.1 (describing “well-docum ented” OIG Report). 29

Nor can the majorit y i n f er A sh c ro f t ’ s re sp o n si bi l i t y si m ply by refe rencing “the

importance of the merger and its impl icati ons for how [Ashcroft’s] lawful original

The majorit y resp onds that I mistak enly treat “the OIG repor ts as a repos itory of 29

all

. . . facts” relevant t o plainti ffs’ cl aims, “measur[ing] plausibil ity by t he absence

or pres ence of fact-findings” in these repor ts. See Majority Op., ante at 50. Not so.

It is plainti ffs who support their pleadings by incorporating the OIG Reports. And

it is the majorit y that main ta ins that statements in (or in the instant example, an

omissi on from) the OIG Report, reaso nably establish the plausibil ity of plainti ffs’

c la ims. I here in demonstrate only why no “factual matter” support s s u c h a

conclusion. Ashcroft v. Iqbal, 556 U.S. at 678.

46[hold-until -cleared] order was being carried out.” Majority Op., ante at 51. Not only

is the asser tion conclusory, but also Ashcroft v. Iq bal holds that even facts “merely

consistent with a defendan t’s li abili ty

. . . stop[] short of the li ne between possibili ty

and plausibil ity.” 556 U.S. at 681–82 (i nternal quotati on marks omitt ed).

Insofar as the majority mai ntains that the OIG Report itself provides factual

support for a plausible inference that Ashcroft, not Levey, was the ulti mate merger

decisionmaker, the conclusion does not bear c lose examination. For example, the

majorit y high li ghts part of the OIG Report indicat ing that, at the same November

2 meeting where the li sts-merger question arose

, an INS official questioned the need

for CIA (as well as FBI ) checks prior to r eleasing 9/11 detainees, prompting Le vey

to reply that he would need to check to see if “‘any detainees could be rele a s e d

without the CIA check.’” Majority Op., ante a t 5 1 ( quoti ng OIG Report 56). The

majorit y rea s ons that if this statement is construed to suggest Levey’s “lack of

authority” to make a decision as to CIA checks, it plausibly “supports the conclusion

that Levey

. . . had to take [the question] to more senior official s.” Id. at 51–52. The

majorit y then quotes another part of the OIG Rep o r t indicating that, in late

November

, when the INS Chief of St a f f a s k e d if DOJ would recons ider the CIA

check requir e me nt, Levey was stil l concer ned about “‘chang[ing] the CIA check

47policy wi thout additional input.’” Id. at 52 (quoti ng OIG Report 62). It concl udes

that “ if L evey was not comfortable changing the CIA check policy without input

from more senior official s, h e c er t a inly would not have been comfortable maki ng the

decision on his own to double the num ber of detainees subject to that policy in the

first instance” and, theref ore, it is plausible to think that he brought the question to

Ashcroft. Id.

This reaso n ing is wholly speculative in assuming Levey’s equal discomfort

with the CIA check and merger decisions. Moreover

, the m ajority’s inference that

Ashcroft was the consulted “senior official ” is defeated by the very OIG Report on

which it purports to rely. Th a t r e p o r t specificall y identifi es the pers on Levey

consulted about continuing CIA checks: it was not Attorney General Ashcroft, but

“David Laufman, the Deputy Attorney General’s Chief of Staff.” OIG Report 62. It

was Laufman who advis e d Levey to continue the CIA checks. See id. In its 30

footnote acknowled g m en t o f L a u f man’s role, the majorit y denies any intent to impl y

Ashcroft’s resp onsibili ty for the CIA checks decision. It maint ains that “the only

The majorit y can hardly have overlooked the OIG’s identifi cation of L a u f ma n 30

because it occurs in the very sentenc e of the Report that the majorit y quotes (in part)

about Levey’s continuing discomfort with maki ng a CI A c h e c k decision in late

November 2001. See OIG Report 62.

48relevance of the CIA checks d e c is io n

, p eriod, is that Levey was not capable of

maki ng it on his own, suggesting that he also w o u ld not be able to make the li st

merger decision on his own.” Majority Op., ante at 52 n.27. What the majorit y fails

to explain, however

, is how that analogy supports an inference that Ashcroft made

the merger decision.

While that could end this discussion, I further note that the OIG Report does

not, in fact, permit one to infer from Levey’s discomfort with canceling CIA checks

on his own that he must have been equall y uncomfortable with maki ng the li stsmerger decision. The OIG Report expr essly states that Levey made the li sts-merger

decision “[a]t the conclusion of the [November 2] meeting” at which the subject was

first raised to him. OIG Report 56. In short, there was no delay in Levey’s maki ng

of the merger decision for him to consult with Ashcroft or anyone else, leaving the

majorit y’s reas oning on this point whol ly wi thout any basis in fact.

The majorit y resp onds that because “the issue of the N e w Y o r k li st was

discovered in October 2001,

. . . surely it is plausible that Levey consulted with more

senior official s, includi ng Ashcroft, prior to [ the November 2] meeting.” Majority

Op., ante at 53 (emphasis in original). Even if this w e r e an accurate account of

events, it admit s no more than a possibili ty that Levey consulted with anyone in the

49interim, m uch less that the per son consulted was Ashc roft. But I do not thi nk this

account is accurate. While the OIG Report does detail an October 22, 2001 meeting

at which DOJ, FBI

, and INS repr esen tati ves di scussed “problems presented by the

New York L is t, ” th e critical fact omit ted by the majorit y is that Levey was not in

attendance. OIG Report 55. The OI G Report states that what Levey attended was

a “follow-u p meeting” on November 2, 2001. It was th e r e th a t h e heard the

competing views of the three interested entiti es, and made the merger decision. Id.

at 55–56. The majorit y never theless deems it plausible that Levey learned about the

October New York li st discussion in advance of the Nove mb e r me e ting because

“Levey would not attend the November 2 meet ing without knowing its agenda.”

Majority Op., ante at 53 n.29. This gave him “ti me to c o n s u lt with more senior

official s, includi ng Ashcroft, befor e communi cating a decision” at the November 2

meeting. Id. (emphasis added). Such attenuated reaso ning stops well “short of the

li ne between possibili ty and plausibil ity.” Ashcroft v. Iq bal, 556 U.S. at 681–82

(internal quot ation marks omi tted). It i s pure s peculation. 31

In another footnote, the majorit y further asser ts that Levey’s communi cation with 31

Ashcroft about the li sts-merger decision, and Ashcroft’s a p p ro v a l o f t h e m er g er

, f i nd

support in Zigl ar’s statement to the OIG that “he [i.e., Zigl ar] contacted the Attorney

General’s Office on November 7, 2001 [i.e., five days after Levey had already made

the merger decision], to discuss concer ns about the clearance proces s, espe ciall y the

50Thus, the pleadin g s

, e v e n with incorporation of the OIG Report, do not

“contain s uffici ent factual m atter” plausibly to as cribe the li sts-merger decision to

the DOJ Defe ndants Ashcroft v. Iq bal, 556 U.S. at 678 (stating that w ell-pl eaded

facts must permit court to i nfer more than mere pos sibili ty of mi sconduct).

Second, even if plainti ffs could plausibly all ege the DOJ Defe ndants’

resp onsibili ty for the merger decision—which they cannot—plainti ffs fail to plead

th a t th e se defendan ts thereb y intended for plainti ffs to be held in the MDC’s

ADMAX SHU. The Complaint pleadings quoted at the start of the prece ding point,

see supra at 44–45, asser t only that New York li st detainees should be designated as

“ o f in te rest” and held until cleared; they make no mention of any DOJ Defe nd a n t

dictati ng ali ens’ continued confinemen t in th e ADMAX SHU, or even their

awarene ss of that result. Indeed, after merger, most N e w Y o rk li st detainees

continued to b e h e ld in gener al confinement at the Passaic County Jail. See OIG

impact of adding the New York cases to the INS Custody li st.” OIG Report 66. But

the OIG Report makes clear that who Zigl ar called was not Ashcroft himself, but his

Chief of Staff, and that the pers on he in fact spoke with was Deputy Chief of Staff

David Israelite. Id. at 66–67. Further, when Zigl ar’s quoted statement is read in the

context of prece ding and subse quent paragraph s, it is plain that his concer ns related

o n ly to the “slow pace” of the FBI’s clearance proces s, not to the conditions of

confinement for Ne w York li st detainees held at the MDC. Id. These facts can not

admit a plausible inference that Ashcroft made the merger decision, much less that

he made it for a puniti ve purpos e.

51Report 111.

Moreover

, the OIG Report’s detail ed discussion of the li sts-merger decision

gives no indicat ion that th e issue of continued restr icti ve—as opposed to

gener al—confinement informed the merger decision in a n y way. The Report

explains that INS official s opposed merge r because of “how it would look when

[ I NS ] st a t i st i cs regar ding the number of Septembe r 11 detain ee s d o u bl ed o v er n i g h t

. ”

OIG Report 55. The INS feare d these high n u mb e r s would pers ist because of the

tim e it was taking the FBI New York office to conduct clearance inqu iries. The INS

predicted that such delay would make it difficu lt for its att o r neys to argue for

continued detention without bail. See id. at 55–5 6

. Viewed in this context, the 32

statement of Victor Cer da, Zigl ar’s Chief of Staff, explaining INS’s opposition to the

merger decision—“INS did not want to begin treating all the detainees on the New

York li st under the mo re restr icti ve INS polici es applicable to Septembe r 11

detainees,” OIG Report 56—can onl y be unde rstood to re fere nce the INS p olicy of

At the sam e tim e that the OIG Report critici zed t he slow pace of FBI clearance, it 32

acknowledged that the FBI New York office was under enormous pres sure after the

9/11 attacks, both in investigati ng that event and in preve nting future attacks. The

New York office had by far th e mo s t leads to pursue, in the course of which it

encounter ed the most il legal ali ens. See OIG Report 2, 22 (indicati ng that, of the 762

il legal aliens arre sted during the 9/11 investigati on nationwide through August 6,

2002, 491 were ar reste d in New York).

52holding all 9/11 detainees without bond, a restr icti on that it did not apply to il legal

ali ens generally, see id. at 73. In sum, the merger deb ate between the I NS and FBI

was about whether il legal ali ens on the New York li s t should continue to be

detained at all

, not about the con d it io n s of their confinement. Thus, the debate

admit s no inference that the m er g er decision—by whomever made—was moti vated

by a desire to subject the MDC Plai ntiffs to restrictive confinement.

Third, as the district court obser ved in dismi ssing p lai ntiffs’ puniti ve

confinement claim against the DOJ Defe ndants, plaintiffs do not all ege that these

defendan ts “were even aware” of the challenged restr icti ve confinement conditions

a t th e MDC. Turkmen III

, 915 F. Supp. 2d at 340. The majorit y neve r th e le s s

concludes that the Complaint admit s an inference o f such awarene ss, pointing to

all egations that (1) FBI Director Muell er oversaw the 9/11 investigatio n f r o m FBI

Headquarters, see Compl. ¶¶ 56–57); and (2) the DOJ Defe ndants “rece ived detailed

dail y repor ts of the arre sts and d e te n tions,” id. ¶ 47. See Majority Op., ante at 42.

I resp ectfull y submit that these all egations admit no more than a possibili ty that the

DOJ Defe ndants ever learned of the parti cular conditions of confinement imposed

by BOP official s at the MDC—or

, indeed, at any of the o th er facili ties around the

country where the 738 il legal ali ens arre sted in the course of the 9/11 investigati on

53were h eld until cleared.

The first all egation, that FBI Director Muell e r oversaw the vast 9/11

investigati on from headquarters—as opposed to the investigati on being run out of

one or more field offices—says nothing to support an inference that Muell er would

theref ore have had pers onal knowledge as to the particular confinement conditions

imposed by the BOP on MDC detainees. See Ashcroft v. Iqb a l, 5 5 6 U

. S

. at 678

(h o ld in g that complai nt must do more than plead facts “merely consistent with a

defendan t’s li abili ty” to c r o ss the li ne from “possibili ty” to “plausibil ity”). To be

sure, plai n t i f f s a l l eg e t

h a t the MDC defendan ts formulated the challenged restr icti ve

conditions “in consu lt a ti o n with the FBI.” Compl. ¶ 65. But the FBI is an

o r g a n iz a tion with more than 13,000 agents among 30,000 employees. Thus, th is

pleading hardly admit s an inference that the FBI Director himself (much less the

Attorney General or INS Commissioner) pers onally participated in or even knew of

these con sultati ons.

As to the second all egation highli ghted by the majorit y, even assuming

arguendo that it mi ght admit an inferen ce that the DOJ D efendan ts rece ived dail y

repor ts on the number of il legal ali ens detained in the 9/11 in v estigati on, and on

facts about such per sons relevant to the ongoi ng terror ism i nvestigation, i t is pure

54conjecture to think that dail y repor ts to feder al authoriti es at this high level detailed

the particular conditions of confinement under which each arre sted ali en was being

held a t th e v a r ious facili ties being used for that purpose

. See id. Indeed, as the

district court obser ved, plainti ffs themselves allege that the challenged conditions

o f c o n f ine ment at the MDC were the “result” of the DOJ Defe ndants’ policy o f

holding il legal ali ens until cleared, rather than a specificall y approved element of

that poli cy. Turkmen III , 915 F. Supp. 2d at 340 (citi ng Compl. ¶ 61).

Nor do those parts of the OIG Report cited by the majorit y support a different

conclusion. See Majority Op., ante at 42–44. A BOP official ’s statement that “the

Depar tment [of Justice] was aware of the BOP’s decision to house the Septembe r 11

detainees in high-security sections in various BOP facili ties,” OIG Report 19

(emphasis added), is too vague to ascribe pers onal awar e n e s s to the three DOJ

Defe ndants in this case. Moreover

, the statement refe rence s how the BOP 33

gener all y impl emented the hol d

- u n d er

- c l ea r p o l i c y throughout the country—which

Indeed, the OIG Report indicat es that a number of DOJ witne s ses—including 33

Michael Che rtoff, the Assistant Attorney General in charge of the Criminal Division;

his Deputy Ali ce Fisher, who oversaw terror ism is s u e s in the divi sion; David

Israelite, the Deputy Chief of Staff to the Attorney General; and Southern District of

New York Deputy U.S. Attorney Da v id Kell ey, the lead prose cutor on the 9/11

investigati on—stated that they either had “ n o i n f o rm a t i o n ” o r “ n o i n p u t ” i nto where

detainees woul d be held or the conditions of their confinement at the vari ous BOP

facili ties. Id. at 20.

55the panel concludes does n ot support pl ausible constituti onal claim s ag ainst these

defendan ts. It does not refe rence the parti cular MDC restrictive confinement here

at issue.

Ins ofar as the Attorney General’s Deputy Chief of Staff recalled “one

a ll e gation of prisoner mistreatment being called to the attention of the Attorn e y

General,” id. at 20, a single complai nt sug g e s ts rogue abuse, not the restr icti ve

confinement policy at issue here

. Further, the Attorney General’s resp onse was not

to approve s uch conduct, but to call for a staff inqu iry, hardly action impl ying

puniti ve intent. See id.

BOP Director Kathy Hawk Sawyer did tell the OIG of convers ations she had

in the weeks followi ng 9 / 1 1 with the Deputy Attorney General’s Chief of Staff,

David Laufman, and the Principal Associate Deputy Attorney General, Chr istopher

Wray, in which these men expr esse d “concer ns a b o u t d etainees abili ty to

communi cate both w i t h t h o se o u t si d e t h e f a c il ity and with other inmat es,”and urged

the BOP to take “polici es to th eir legal li mit ” to preve nt such communi cation in

order “to give official s investigati ng the detainees ti me to ‘ do their job.’” Id. at

112–13. But statements b y members of the Deputy Attorney Gene ral’s staff admit

no more than a “possibili ty” that the Attorney General himself was aware of their

56content. Ashcroft v. Iq bal, 556 U.S. at 678. That conclusion applies with even more

force to th e F B I Director or INS Commissioner. Moreover

, the Laufman-Wray

communi cations appear to ha v e urged a communi cation blackout for all 9/11

detainees, not just those held at the M DC . See OIG Report 113. Thus, they cannot

support an inference that the DOJ Defe ndants knew the particular restr ictive

conditions imposed in that facili ty. Furth e r

, it appears that the BOP li fted the

communi cations blackout on 9/11 detainees—eve n at th e MDC—b y mid-October

2001, see id. at 1 1 4

, w h ic h is befor e the November merger decision that is the

majorit y’s triggering date f o r a plausible claim of puniti ve and discrimi natory

confinement by MDC Plai ntiffs. Thus, communi cations befor e the November

merger, by pers ons other th a n th e DOJ Defe ndants, about a condition of

confinement that BO P li f te d befor e the merger decision was made, support no

inference as to what the DOJ Defe ndants knew about conditions of confinement at

the MDC in November 2001. 34

Fourth, even if plainti ffs’ all egations were sufficient to admit an inference that

For the same reaso ns that I think pleadings related to the li sts-merger decision do 34

not admit a plausible inferen c e th at the DOJ Defe ndants knew of the particular

restr icti ve conditions of confinement at the MDC, I do not think they admit a

plausible inference that the DOJ Defe ndants knew that such conditions were being

imposed wit hout indi vidual ized suspicion of terrorist conne ctions.

57the DOJ Defe ndants knew that, as a consequence of the li sts’ merger, MDC Plai ntiffs

would remain in restr icti ve confinement, tha t w o u ld be insuffici ent to impl y the

requisit e sp e c if ic intent. As the Supre me Court explained in Ashcroft v. Iq bal,

“purpose ful” conduct “requires more than intent as voli tion or intent as awarene ss

o f c o n s e quenc es.” 556 U.S. at 681. It requires that a decisionmaker undertake a

course of action “‘because of,’ not merely ‘in spite of’ the action’s adverse effects.”

Id. (internal quotat ion marks and citati on omit ted). Here

, the pleadings provide no

factual basis to conclude that anyone made the merger d e cision because it would

keep the MD C Plainti ffs in restr icti ve confinement.

Fifth, plainti ffs fa il in any event plausibly to all ege facts admit ting an

inference that their c o n tinued MDC restr icti ve confinement after November 2001

was “arbitrary or purpose less” to any legit imat e objective, so that plainti f f s ’ r eal

intent must have been punitive. Bell v. Wol fish, 441 U.S. at 539. That inference is,

I submit, foreclosed by the “obvious” and “more li kely” explanation fo r th e

chall e n ged action: the DOJ Defe ndants’ determination to identify and appreh end

anyone involved in the 9/11 attacks and to safeg u a r d th e nation from further

terror ist att acks. Ashcr oft v. Iq bal, 556 U.S. at 681–82.

This non-punitive moti vation is no after

- th e -fact invention. The Supre me

58Court recognized it to moti vate the entire vast investigati on that followed 9/11 and

pursuant to which plainti ffs were arre sted and confined. See id. at 667 (stating that

“FBI and other entities withi n the Depar tment of Justice b egan an investigati on of

vast reach to identify the [9/11] assailants and preve nt them from attacki ng anew,”

dedicating “more than 4,000 special agent s and 3,000 support pers onnel to the

endeavor ”). The OIG Report makes the same point. See OIG Report 12–13 (noting

Attor n e y Ge neral’s directive that all components of DOJ “focus their efforts on

disrupting any additi onal terror ist threats,” and gener al unders tanding withi n DOJ

that ever y avail able legal means should be used “to make sure that no one else was

kil led”).

T h e p a n el m a

j o ri t y a c k n o w l ed g es t hat national security c o n c er n s “ m i g h t w el l ”

have moti vated defendan ts’ challenged actions, see Majority Op., ante at 106,

includi ng the merger decision on which it r e li e s to deny dismi ssal to the DOJ

Defe ndants, see id. at 54–55 (quoti ng Levey’s statement to OIG that, in merging li sts,

“he wanted to err on the side of caution so that a terror ist would not be release d by

mistak e,” O IG R e p ort 56). Indeed, the OIG Report specificall y concludes that the

merger decision “was supportable, given th e d e s ir e not to release any ali en who

mig ht be connected to th e [ 9 /11] attacks or [to] terror ism.” OIG Report 71.

59Never theless, the maj ority mai ntains that, even if the DOJ D efendan ts were intent

on ensur ing national security, the mism atch between that object and the restr icti ve

confinement conditions at the MDC was so great (in the absence of indivi duali zed

suspicion) as to be deemed arbitrary and purpose less, admit ting an inference of

puniti ve intent. See Majority Op., ante at 55–58.

Whether a court, upon identifyi ng an obvious non-punitive intent f or

challenged conduct, can never theless all ow plainti ffs to pursue a substantive due

proces s claim on a theory of impl ied puniti ve intent is n o t a p p a rent. See

, e.g.,

Ashcroft v. Iq

bal, 556 U.S. a t 683 (rejecting discrimi nation claim in such

circumstances); Block v. Rutherford, 468 U.S. at 589 (instruc ti n g th a t once court

identifi es legit imat e purpose for challenged confinement policy, its inqu iry should

end because “further ‘balancing’ result[s] in a n imper missibl e substituti on of [the

court’s] views” for thos e of confining authoriti es). Cer tainl y, the concl usion is not

placed “beyond debate” by clearly established law, without which defendan ts must

be afforded qual ified imm unity. Carr oll v. Carmon, 135 S. Ct. at 350; Ashcroft v. alKi dd, 131 S. Ct. at 2083.

In urging otherwise, the majorit y cites Bell v. Wolfish, 441 U.S. 520, and Iq bal

v. Hasty, 490 F.3d 143. See Majority Op., ante at 61. Bell v. Wo lf is h h eld that if a

60condition of pre-tr ial confinement “is not reaso nably related to a legit imat e goal—i f

it is arbitrary or purpose less—a court permissibly may infer that the purpose of the

gove r n me n t a ction is punishment.” 441 U.S. at 539. But that simpl y states a

“gener al pro p osition,” which affords “li ttl e help in determining whether the

viol ative nature of particular conduct is clearly established.” Ashcroft v. al-Ki dd,

131 S. Ct. at 2084. Moreover

, because Wolfi s h it self rejected all constituti onal

challenges to the restr icti ve conditions there at issue, see 441 U.S. at 560–62, it hardly

made the parameters of the substantive due proces s ban on puniti ve pre-tr ial

con f ine ment “sufficientl y clear that ever y reaso nable official would have

unders tood” that the restr icti ve conditions h e r e at issue were arbitrary or

purpose less to ensur ing national security in the absen ce of indivi duali zed suspicion

o f te r rorism, Ashcroft v. Al-Ki dd, 131 S. Ct. at 2083 (holding that unless la w is s o

clearly established, official is entitl ed to qual ified i mmu nity).

As for Iq bal v. Hasty, this court did not there place beyond dispute the need

for indivi duali zed suspicion of terror ism to place 9/11 detainees in restr icti ve

confinement. Indeed, that case made no mention of the lack of such suspicion in

obser ving that “[t] h e r ig h t of pretrial detainees to be free from puniti ve restr aints

was clearly e s tab li shed at the tim e of the events in question, and no reaso nable

61officer could have thought that he could punish a detainee by subjecting him to the

practices and conditions all eged b y th e Plai ntiff.” Iq bal v. Hasty, 490 F.3d at 169.

In fact, this statement was made in concluding that plainti ffs had adequately all eged

Warden Hasty ’ s e x pres s puniti ve intent. That conclusion having been reache d

under a pleading standard abrogated by the Supre me Court in Ashcroft v. Iq bal, 556

U.S. at 680, Hasty’s preclusive effect here is open to question. But even if we assume

that this court there corre ctly concluded that the prohibition on puniti ve restraints

is clearly established in any circumstance where a defendan t acts with the exp ress

intent to punish, Hasty did not hold that the same conclusion applies in the myriad

c ir c u ms tances where plainti ffs propose to impl y intent by challenging th e

reaso nablenes s of a restr aint relative to a legit imat e objective. Cer tainl y, Hasty did

not hold it well e s tab li shed that the restr icti ve confinement of lawful ly arre sted

pers ons without i ndividual ized suspicion of a security risk is i mpli citl y puniti ve.

Meanwhile, considerab le law indicat es that indivi d u a li zed suspicion is

gener all y not required to impose restr icti ve condi tions of confinement on lawful ly

arre sted detainees in pursuit of a legit imat e security objective. Block v. Rutherford,

468 U.S. at 585–87, upheld a blanket prohibition on pre-tr ial detainees’ contact visit s,

obser ving th a t th e “identifi cation of those inmat es who have propen siti es for

62viol ence, escape, or drug smuggli ng is a difficu lt if not impossible task,” id. at 587.

Bell v. Wolfish, 441 U.S. at 558, r e je c te d a challenge to body cavity searc hes of all

pre-tr ial detainees after contact visit s even though there had been only a single past

incident of contraband being concealed in a body cavity. Whitl ey v. Albers, 475 U.S.

at 316, held, in the context of a prison riot, that a “shoot low” (i.e., bel o w v ital

organs) policy could be applied without indivi dual suspi c io n to any prisoner

clim bing stairs leading to where hostages were being held. Most rece ntly, Florence

v. Board of Chose n Freeh olders, 132 S. Ct. at 1523, upheld visual strip searc hes of all

arre stees without indiv idual ized suspicion. 35

The reaso ning of these cases applies with equal, if not more, force here where

defendan ts had an obvious and legit imat e interest in identifyi ng anyone connected

with the 9/11 attacks and in safeguarding the nation from further te rror ist att acks.

The majorit y attempts to disti nguish these cases by saying that, in each, the 35

Supre me Court did not state that indiv id u a li z ed suspicion was not required but,

rather

, determined that the challenged restr icti ons reaso nably related to the

legit imat e object of prison security. See Majority Op., ante at 58 n.31. The reaso ning

is perplex ing. Impl icit in the rejection of challenges to gener all y applicable

restr icti ve conditions of confinement is the conclusio n that no indivi duali zed

suspicion was neces sary for the condition reaso nably to r e late to the legit imat e

object of prison security. In any event, the majority p o in ts to no case holding a

gener all y applicable re strictive condition to f ail the reaso nably r e la te d inqu iry for

lack of indivi duali zed suspici on, and certainly not one doing so in the context of a

condition whose profes sed objec t is nati onal security.

63Because the attacks were carried ou t b y A r a b Musli m ali ens who proclaimed

themse lv e s me mb ers of al Qae da, it is “no surpr ise” that author iti es focused their

investigati ve and preve ntative attention on pers ons encounter ed in the course of the

FBI’s 9/11 investigati on, who were not lawful ly in this country, and who fell withi n

the same ethnic and religious group as th e h ijackers or as those targeted for

recr uitm ent by al Qaeda. Ashcroft v. Iq bal, 556 U.S. at 682 (re c o g n izing that

circumstances of 9/11 attacks neces sarily produced “disparate, incidental impact on

Arab Musli ms”); see also United States v. Farhane

, 6 3 4 F

. 3 d 1 2 7

, 132 n.4 (2d Cir.

2011) (discussing “fatwa” proclaimi ng it religious d u t y o f M u sl i m s w o rl d w ide to kil l

Americans and their a ll ie s where ver found). Moreover

, given (1) the inheren t

difficu lty in identifyi ng in advance of an FBI-CIA investigati on who, among such a

group of il legal a li ens, mig ht have terror ist connections; (2) the serious risk of

murderous harm posed by pers ons with such connection s ( e v e n while

incarcerated ); and (3) events followi ng 9/11 fueling fears of further imm inent

36

attac ks, I cannot conclude that established prece dent would have alerted the

37

See infr a a t 67–68 (discussing actions of Omar Abdel Rahman and Mamdouh 36

Mahmud Sali m whil e incarcer ated).

See supra at 28 & n.19 (detaili ng anthrax scare

, airli ner crash, shoe bomb attempt, 37

and journalist beheading, all w ithi n five months of 9/11 attacks).

64Attorney General, the FBI Director, and the INS Commissioner that, in the absen ce

of indivi duali zed suspicion of terror ist connections, it was arbitrary or purpose less

to national security to hold such il legal ali ens in restr icti ve, ra th e r than gener al,

confinement pending clearance

.

In disputi ng that conclusion, th e majorit y mischaracterizes this dissent to

asser t that “because the MDC Pl a in ti f f s were, or appeare d to be, members of the

group—Arab or Musli m males—that were targete d f o r recr uitm ent by al Qaeda,

they may be held in the ADMAX SHU without any reaso nable suspicion of terror ist

activi ty.” Majority Op., ante at 56. I suggest no such thing. In fact, no plainti ff was

“ h el d ” o n a n y t

hing less than probab le cause, specificall y, probab le cause to think t h e

ali en was in viol ation of feder al imm igration laws. Mor e o v e r

, th e majorit y itself

identifi es no plausible constituti onal claim against the DOJ Defe ndants for holding

9/11 de ta inees until they were cleared of terror ism connections—eve n though

deta in e e s were overwhe lmi ngly Ar ab and Musli m, and detention continued after

the li sts-merger decision even without indivi duali zed suspicion of terror ism for the

New York li st detainees. See Majority Op., ant e at 39–40. Nor does it identify any

prece dent clearly establishing tha t s u b stantive due proces s does not permit

detention to b e restr icti ve in such circumstances unless there is indivi duali zed

65suspicion of terror ist connections. It is in the absen ce of such prece dent that I asser t

the DOJ D efendan ts are e ntitl ed to qual ified i mmu nity.

Nor do I suggest that government official s can “hold[] someone in the most

re st ri c t i v e c o n diti ons of confinement avail able simpl y because he h a p p en s t o be

— o r,

worse yet, appeare d to be—Ar ab or Musli m.” Majority Op., ant e at 57. Rather, as

I explain in discussing plainti ffs’ equal protection claim

, the pleadings do not admit

a plausible inference that the MDC Plai ntiffs were restr icti vely confined because of

their ethnicity or religi on. See infra Part II.B.

The majorit y further misconstrues the dissent “to impl y th at once ‘national

security’ concer ns become a reaso n for holding someone,” there is no need to

consider whether restr icti v e conditions reaso nably relate to that objective. See

Majority Op., ante at 55. Not so. B e ll v

. W o lf ish makes plain that neither

c o n finement, nor any condition of confinement, can be imposed on pre-t r ia l

detainees for the p urpose of punishment. See 441 U.S. at 535. Thus, I have never

suggested that a legit imat e national security purpose for holding someone supports

the further imposi tion of restr icti ve conditions of confinement without any need to

consider whether such conditions also reaso nably rel a te to the same objective, or

whether they are so arbitrary and purpose less as to admit an inference that their real

66p u r p o se was punishment. What I asser t is that an arbitrary and purpose less

conclusion as to the restr icti ve conditions here at issue is not so beyond debate that

the DOJ D efendan ts can be de nied qual ified i mmu nity.

To explain, isolati ng the 9/11 detainees confined at the MDC from one another

and from the outside world while clearance investigati ons were conducted ensur ed

that—in the event detainees were found to have terror ist connections—they would

not have been able to communi cate in ways that either furthered terrorist plans or

thwarted government investigati ons. Further, strict restr icti ons o n p r ison

movement and cell conditions mini mized the possibi li ty that, whi le clearance was

pursued, an as-yet-unidentified terror ist associate would threaten either national or

prison security. We n e e d o nly look to our own prece dent to unders tand why the

exec utive would reas onably have had such concer ns. In the two years befor e the

9/11 attacks, convict e d te rror ist Omar Abdel Rahman (“the Bli nd Sheikh”) had

managed to use hi s l awyer to communi cate from prison to followers in Egypt that

he now sanctioned rene wed terror ist attacks. See United States v. Stewart, 590 F.3d

93, 163–65 (2d Cir. 2009) (Walker, J., concurring in part and dissenting in part). Also

in the year befor e 9/11, pre-tr ial detainee Mamdouh Mahmud Salim

, charged with

participati n g in the bombings of United States embassies in Africa, viciou sly

67attacked a guard at New York’s Metropolitan Corr ectional Cen ter with a sharpe ned

plastic comb, causing the guard both to lose an eye and to s uffer permanen t b rain

damage. See United States v. Salim

, 690 F.3d 115, 119–20 (2d Cir. 2012). Both men

had been hel d in s o me degre e of restr icti ve confinement. Events after 9/11,

suggesting ongoing terror ist p lo ts

, see supra at 28 & n.19, would only have

reinforce d the exec utive’s view that national security r e qu ir ed that the MDC

Plai ntiffs be re s tr ic ti vely confined until authoriti es could determine whether they

had terror ist co n nections. The majorit y cites no established prece dent to the

contrary. Nor can it ground an arbitrary and purpose less conclusion in the fact that

not all New York li st detainees were held in restr icti ve confinement pending

clearance. See Majority O p

. , a n te a t 59. As the Supre me Court stated in Bell v.

Wolfish, “the Due Pr o c es s Cl a u se d o es n o t m a n d a t e a ‘ l o w est common denominator’

security sta n d a rd, where by a practice permitted at one penal instit ution must be

permitted at all instit utions.” 441 U.S. a t 554. Its singular concer n is that

defendan ts’ real purpose not be punitive.

With the bene fit—or handicap—of hindsight, pers ons mig ht n o w debate how

well the challenged restr icti ve c o n f ine ment policy at the MDC serve d national

68security interests. But it is no more a judici al function to decide how best to ensur e 38

national security than it is to decide how best to operate a detention facili ty. See id.

at 539. Rather, on qual ified imm unity review, our task is to determine whether the

MDC Plai ntiffs plausibly all ege a substantive due proces s viol ation that, in late 2001,

was so clearly established b y p r e c e d e n t as to put the il legali ty of the DOJ

Defe ndants’ actions beyond debate. See Ashcroft v. al-Ki dd, 131 S. Ct. at 2083. For

the reaso ns stated here in, I conclude th a t is n o t this case and that the DOJ

Defe ndants are, theref ore, entitl ed to d ismi ssal of plainti ffs’ puniti ve confinement

claim on the ground of qualifi ed imm unity.

2. MDC D efendan ts

By c o n trast to the DOJ Defe ndants, MDC Defe ndants Hasty and Sher man

were pers onally involved in the MDC Plai ntiffs’ restr icti ve confinement in th e

ADMAX SHU both befor e and after the November 2001 me r g e r d e c is ion. As 39

See 9/11 Report 339 (cautioni ng, with resp ect to judgi ng actions leading and 38

resp onding to 9/11 attacks, that hindsight can both make things seem “crystal clear”

that at relevant t ime were “obscure and pregnan t with conflicti ng meanings,” and

make it “harder to reimagine” the “preoccupations and uncertainty” of a past tim e

as memories “become colore d” by knowledge of what happene d and was written

later).

The decision to impose strict restr icti ve confinement was apparen tly made at the 39

headquarters level of the BOP, see OIG R e p ort 19, with the MDC Defe ndants

establishing the conditions effecting such confinement, see Compl. ¶¶ 24, 26, 68, 75.

69warden and deputy warden of the MD C

, h o w e ver, these defendan ts have a

particular claim to judici al defer ence in de te r mi ning the confinement conditions

reaso nably related to legit im a te s e curity interests. See Florence v. Bd. of Chose n

Freeh olders, 132 S. Ct. at 1517; Bell v. Wolfish, 441 U.S. a t 5 4 8

. Th e majorit y

concludes that no such defe rence is warranted he re because the MDC Defe ndants

(1) imposed the conditions without adequate supporti n g in formation or an

evaluati on of their propr iety, and (2) maint ai n ed t h e re strictive conditions even after

learning that they were not supported by indivi duali zed suspicion of the detained

ali ens’ terror ist connections. See Majority Op., ante at 63–65. Moreover

, the

majorit y obser ves that this court denied qu a l i f i ed i m m u n ity on a materiall y identical

s u b s ta n ti ve due proces s claim in Iq bal v. Hasty, 490 F.3d at 143, 168–69, a n d

identifi es no reaso n to rule differently her e

. See Majority Op., ante at 73. I

resp ectfull y disagree.

First, plainti ffs’ pl eadings do not admit a plausible inference that Hasty and

Sher man imposed restr icti ve conditions of confinement without an y s u p porting

informati on or asses sment of propr iety. As to the latt er, the OIG Report recounts

that, imm ediately after the 9/11 a ttacks, BOP Headquarters order ed that “all

detainees w h o w e re ‘convicted of, charged with, associated with, or in any way

70li nked to terror ist activi ties’

. . . be placed in the highest level of restr icti ve

detention.” OIG Report 1 1 2

. A p lausible inference of puniti ve intent cannot

reaso nably be drawn from the MD C Defe ndants’ carrying out this order without

maki ng an independen t asses sment of its categorical need. The obvious and more

li k e ly moti vation for their doing so is national and prison security. Defe ndan ts

reaso nably defer red to their superiors ’ asses sment that, in the aftermath of a

devastating terror ist attack, lawful ly arre sted il legal ali ens, whom the FBI and CIA

were investig a ting for possible terror ist connections, should be kept “in the most

secure conditions avail able until the suspects could be cleared of terror ist activi ty.”

Ashcroft v. Iq

bal, 556 U.S. at 683. The Supre me Court has alr e a d y h e ld that such

moti vation does not admit a plausible inference of discrimi natory intent. See id. No

more will it adm it a pl ausible inference of puniti ve intent.

Further, because it is undisputed that the FBI had designated each MDC

Plai n ti f f a s a pers on “of high interest,” or “of interest” in their ongoing terror ism

investigati on, and that BOP employees relied on this designation in im p osing

restr icti ve confinement, see, e.g., Compl. ¶¶ 1–2, 4; see also OIG Report 111–12, 126,

158, it cannot be said that the MDC De fendants acted without any informati on so

as to admit an inference that their conduct was arbitrary or purpose less. See

71gener all y Martinez v. Simonetti

, 202 F.3d 625, 635 (2d Cir. 2000) (holding that police

may reaso nably rely on informati on provided by other officers even when

confronte d w it h conflicti ng accounts). Thus, these all egations do not plausibly

impl y discrimi natory intent.

Second, insofar as plainti ffs fault the MDC Defe ndants for maint aining them

in r estrictive confinement even after learning that the FBI’s d esignations were not

based o n in d iv idualized suspicion, I have already explained with re fere nce to the

DOJ Defe ndants why established prece dent does not support that conclusion, much

less alert ever y reaso nable feder al official that restr icti ve confinement in the absen ce

of indivi duali zed suspicion of a securit y threat viol ates substantive due proces s. See

supra at 62–63.

Iq bal v. Hasty, 490 F.3d 140, does not dictate otherwise. As discussed supra

at 6 1

– 6 2, the court there applied a “notice pleading standard” to “gener al all egations

of knowledge” to identify all eged “purpose ful infli ction of r e s tr a ints that were

puniti ve in nature.” Id. at 169. In th u s ide ntifyi ng expr ess puniti ve intent, Hasty

never discussed whether the pleadings otherwise p la usibly impl ied intent.

Although the M DC Defe ndants were not parties i n Ashcroft v. Iq bal, the Supreme

Court’s rejection of th e p le a ding s tandard employed in Hasty, see 556 U.S. at 684,

72does not admit preclusive effect to Hasty’s a ss es sm en t of the sufficiency of plainti ffs’

specific intent clai ms, particul arly insofar as they imply i ntent. 40

Accordingly, I w o u ld dismi ss plainti ffs’ policy-chal lenging puniti ve

confinement claim against the MDC Defe ndants, as well as the DOJ Defe ndants, on

grounds of qualifi ed imm unity. 41

B. Discriminatory Confinement

To state a Fifth Amendment claim for discrimi natory confinement, a plainti ff

must plead sufficient factual matter to show that defend a n ts adopted the challenged

restr icti ve confinement p o licy not for a neutral reaso n “but for the purpose of

discrimi nating on account of race, religi o n

, o r n ational origin.” Ashcroft v. Iq bal, 556

U.S. a t 676–77 (explaining that standard is not satisfied by pleadings of intent as

“voli tion” or “awarene ss of consequences ”; in st ea d

, p l ea d i n gs must plausibly all ege

that defendan t undertook conduct “because of,” not merely “in spite of[,]” its

Indeed, when reviewing Turkmen I in li ght of Ashcroft v. Iq bal, we vacated the 40

district court’s decision and remanded “for further procee dings consistent with the

standard articulat ed in Twombly and Iq bal.” Turkmen II, 589 F.3d a t 5 4 6–47. On

remand, the district court did not cite Hasty in identifyi ng a plausible puniti ve

confinement claim against the MDC Defe ndants. See Turkmen III

, 915 F. Supp. 2d

at 341. Th e s e d e v elopments do not comport with a conclusion that Hasty is

dispositi ve on this appeal.

This dissent does not pertain to plainti ffs’ non-policy claim s of “unofficial abuse” 41

against the MDC D efendan ts.

73d i sc ri m i n a t o ry ef fect). The Supre me Court articulat ed this standard in re v er si n g t h i s

court’ s determination that these plainti ffs’ original complai nt stated a plausible

claim for discrimi natory confinement based on race, religion, or national origin. See

id. at 687. While acknowledging that plainti ffs had pleaded facts “consistent with”

purpose ful discrimi nation, the Court concluded that such a claim was not plausible

in li ght of the “obvious,” and “more li kely” non-discriminatory r e a s on for the

c h a ll enged confinement policy, specificall y, national security concer ns about

“potential conne c ti o n s ” between il legal ali ens identifi ed in the course of the FBI’s

investigati on of the 9/ 11 attacks and Islam ic terror ism. Id. at 682–83 (holding that,

where all pleadings “plausibly suggest[] is that the Nation’s to p la w enforc ement

officers, in the aftermath of a devastating terror ist attack, sought to keep suspected

terror ists in the most secure conditions avail able until the suspects could be cleared

of terror ist activi ty,” plainti ffs “would need to all ege more by way of factual content

to nudge [their] claim [s] of purpose ful discrimi nation across the li ne f rom

conceivable to plausible” (i nternal quotati on marks omitt ed)).

One mig ht have thought that put plainti ffs’ policy-ch a ll enging claim s of

discrimi natory confinement to rest

. The majorit y, however

, affords the MDC

Plai ntiffs anoth e r opportunity to pursue these claim s, concluding that the newest

74amended complai nt now pleads sufficient facts to show that it is “not more li kely”

that the MDC Plai ntiffs we re held in r estrictive confinement because of suspected

ties to terrorism. Majority Op., ante at 83.

The pleadings the majorit y cites to support this conclusion as to both the DOJ

and MDC D efendan ts can be s umm arized as follows: (1) the New York FBI office

expr essly relied on race, religion, ethnicity, and national origin in targeting pers ons

identifi e d in their 9/11 investigati on for detention; (2) the DOJ Defe ndants were

aware of and condoned su c h d is c r imi natory intent b y merging the New York FBI

detainee li st with the INS national detainee li st, knowing that the former li st was not

supported by indivi duali zed suspicion of a terror ist threat; (3) the MDC Defe ndants

a l so k n ew t h er e w as no indivi duali zed suspicion tying th e a f o re m en t i o n ed d et a i n ee s

to terror ism when they confined th e m in th e ADMAX SHU; and (4) the MDC

Defe ndants falsely repor ted that MDC staff had c la s sified the ADMAX SHU

detainees as “high security” based on an indivi duali zed asses sment when no such

asses sment was ever conducted. See id. at 55–62. I am not persuaded.

F i rs t

, t h e a m en d ed complai nt’s pleadings of purpose f u l F B I d i sc ri m i n a t i o n a re

not materiall y different from those considere d in Ashcroft v. Iq bal. See 556 U.S. at

669 (ackno w le dging that plainti ffs pleaded purpose ful designation of detainees

75based on race, religion, or national origin); see also id. at 698 (Souter, J., dissenting)

(detaili ng specific all egations that FBI official s impl emented policy that

discrimi nated agai nst Arab Musl im men based solely on race, religion, or nati onal

origin). Thus, we are bound by the Supre me Court’s holding that such all egations

are inadequate to plead plausible discrimi natory i ntent in li ght of the obvi ous and

more li kely national security explanation for the challenged confinement. See id. at

681–82.

Not insignificantly, in reaching this conclusion, the Supre me Court

acknowledged that it was the perpe trators of the 9/11 attacks who injected religion

and ethnicity into the gover n me n t’ s investigati ve and preve ntative efforts. The

Court stated that the attacks “we re perpe trated b y 19 Arab Musli m hijackers who

counted themselves memb e r s in good standing of al Qaeda, an Islam ic

fundamentali st group. Al Qaeda was headed by another Arab Musli m—Osama bin

Lade n

— a nd composed in large part of his Arab Musli m discipl es.” Id. at 682.

Where a terror ist group thus effectively defines itself by refe rence to religion and

ethnicity, see supra at 64, the Constitution does not require investigati ng authoriti es

to ignore that reality nor to dil ute li mit ed reso urces casting a wider net for no good

reaso n. It is “no sur p r is e ” th en that a law enforc ement policy—i ncluding a

76restr icti ve confinement policy—l egiti mately a im e d at identifyi ng pers ons with

connections to the 9/11 attacks and preve nting further attacks “ w ould produce a

disparate, incidental impact o n Arab Musli ms, even though the purpose of the

policy was to target neither Arabs nor Musli ms.” Ashcroft v. Iq bal, 556 U.S. at 682;

see also Brown v. City of Oneonta, 221 F.3d at 337 (obser ving that racial descr ipti on

of perpe trator, “which originat e d n o t with the state but with the victi m, was a

le g itimate classificat ion withi n which potential suspects mig ht be found,” even

though it m ight well have disparate impact on minorit y groups). 42

Thus, as in Ashcroft v. Iq bal, plainti ffs cannot plausibly impl y proscr ibed

discrimi natory intent from pleadings merely “consistent with” the New York FBI’s

all eged purpose ful targeting and detention of ali ens based on ethnicity and religion.

556 U.S. at 681–82. Here

, those character isti cs originated with the terror ists not the

state, the FBI actions were li mit ed to ali ens not law f u ll y in this country and

In rece ntly forbidd ing investigati ve stere otyping, the Depar tment of Justice 42

never theless stated that, “in conducting activi ties directed at a sp e c ific criminal

organization or terror ist group whose membership has been identifi ed as

overwhe lmi ngly pos sess ing a li sted character isti c, law enforcement should not be

expe cted to d isregard such facts in taking investigati ve or preve ntive s te ps aimed

at the organizations’ activi ties.” U.S. Dep’t of Justice, Gui d a n ce for Feder al Law

Enforce ment Agencies Regar d in g the Use of Race, Ethnicit y, Gender, National

Origin, Religion, S exual Orientation, or Gender Identity 4 (D ec. 2014), avail able at

http://1.usa.gov/ 1ytxRoa.

77encounter ed in the course of the 9/11 investigati on, and the obvious and more li kely

reaso n for the challenged confinement was ensur ing national security in the face of

an Islam ic terrorist thre at. 43

Second, th e DOJ Defe ndants’ purported involvement with the li sts-merger

decision a ls o c a n not impl y these defendan ts’ discrimi natory intent. As I have

already explained with resp ect to puniti ve intent, plainti ffs fail plausibly to p le ad

these de fendants’ involvement with that decision. See s upra at 44–51.

In any event, the merger decision—by whomever made—applied equall y to

all New York li st detainees, the larger number of whom were not subjected to

restr icti ve confinement, but housed in gener al prison populati on at the Pass a ic

In discussing the actions of the New York FBI office—and particularly its 43

maint enance of its own li st of 9/11 detainees—the OIG and the majorit y refe rence

that office’s traditi on of independen ce from headquarters. See Majority Op., ante

at 24 n.12 (citi ng OIG Report 54). Such independen ce does n o t p la usibly impl y

rogue conduct. To the contrary, in the years befor e 9/11, the New York FBI office led

the nat ion’s pursuit of Islam ic terror ism, as is evident in a number of exemplary

investigati ons. See

, e.g., 9/11 Report 72 (commendin g “ s uperb investigati ve and

prose cutorial effort” of New York FBI and U.S. Attorney’s Office in identifyi ng and

convicting perpe trators of first W o r ld Trade Cen ter attack, as well as the “Bli nd

Sheikh” and Ramzi Yousef); see also In re Terror ist Bombings of U.S. Embassies in

E. Africa, 552 F.3d 93 (affirming New York convictions for terror ist b o mb in g s of

American embassies in Africa based on guil ty verdicts returne d only weeks befor e

9/11). In short, at the tim e of the 9/11 investigati on, there was no FBI field office with

greater knowledge of, or e x p e r ie nce investigati ng, Islam ic terror ism than that in

New York. This, and not invidi ous discrimi natory intent, is the obvious and more

li kely explanation for its independence

.

78County Jail, even though they share d the sam e racial, religious, and national

identit ies as the MDC Plai n ti ffs. See supra at 51–52. Such circumstances do not

permit discrimi natory intent plausibly to be inferre d from the merger decision. See

gener all y O’Conn or v. Conso l. Coin Catere rs Corp

., 517 U.S. 308, 313 (1996) (holding

that inference of age discrimi nation cann o t be drawn from “replacement of one

worker with another worker insigni ficantl y younger”); James v. N.Y. Racing Ass’n,

233 F.3d 149, 154 (2d Cir. 2000) (stating that prima f a c ie c a se for discrimi nation

required proof of employer “prefe rence for a pers on n o t o f th e protected class”).

Indeed, the conclusion that a plainti ff cannot urge an inference of discrimi natory

purpose from his rece ipt of treatment less favorable than most members of his own

protec te d c lass is s o obvious that we gener all y pronounce it summarily

. See

, e.g.,

Flemi ng v. MaxMara U SA, Inc., 371 F. App’x 115, 117 (2d Cir. 2010) (summary

order ). District cour t op inions in this circuit to the same effect a r e countless. See

,

e.g., Baez v. New York, 56 F. Supp. 3d 456, 467–68 (S.D.N .Y. 2014) (collecti ng cases);

White v. Pacifi ca Found., 973 F. Supp. 2d 363, 381 (S.D.N .Y. 2013) (collecti ng cases).

Thus, no clearly e st a b lished law would have alerted ever y reaso nable official that

the lists-merger decision violated equ al protection. 44

The majorit y recognizes that the prece dent cited here in undermines plainti ffs’ 44

equal protection claim

, but it maint ains that these holdings proper ly apply on

79In concluding otherwise, the majorit y dismi sses the Passaic assignments as a

“red herr ing.” Ma jo r it y O p., ante at 85. The label wil l not stick. The reality that

most Arab Musli m detainees o n th e N e w Y ork li st were not held in restr icti ve

confinement precludes a plausible inference that arre sting FBI agents were intent on

d i scriminati ng against Arab Musli ms in assigning a minorit y of New York detaine es

to the MDC. Thus, even if the li sts-merger decision can be unders tood to manifest

the DOJ Defe ndants’ “defer ence to others’ designation of detainees for particular

facili ties,” id. at 84, that is not a factual basis f o r p la usibly inferring their

discrimi nat o ry i n t en t a g ainst MDC detainees. To overcome this hurdle, the majorit y

paren theticall y suggests that “for all [the DOJ Defe ndants’] knew, all ” New York li st

detainees were held in restr icti ve confinement. Id. This is, again, pure speculation.

Moreover

, becaus e th e facts are to the contrary, a plainti ff (or a panel majorit y)

summary judgment review, n o t d is mi ssal. See Majority Op., ante at 85 n.39. Bell

Atlanti c Corp

. v. Twombly, 550 U.S. 544 (2007), doe s n o t admit that conclusion.

Therein, the Supre me Court obser ved that it had earlier ruled “at the summary

judgment stage” that an inference of anticompeti tive collu sion could not be drawn

from parallel conduct. Id. at 554 (citi ng Matsushita Elec. Indus. Co. v. Zenith Radio

Corp ., 475 U.S. 574 (1976)). It then appl ied that same rule at the motion to di smiss

stage, holdi n g th a t where plainti ffs’ pleadings, taken as true, show only parallel

conduct, a conspi r a c y is n o t plausibly all eged. See id. at 556. The same principle

applies here

. Just as evidence of differential treatment withi n a suspect class is

insuffici ent on summary ju d g m en t t o d em o n st ra t e p ro scribed discrimi natory intent,

all egations of such d if f ere ntial treatment are insuffici ent to plead discrimi natory

intent so as to defeat a motion for dismi ssal.

80looki ng to locate invidi ous intent in defendan ts’ possible m isunderstanding of the

confinement circumstance s surely needs to identify some factual basis for its

hypothesis. Se e Ashcr oft v. Iq bal, 556 U.S. at 678. That is m issing here.

In sum, plainti ffs fail plausibly to plead either that DOJ Defe ndant s w e r e

resp onsible f o r th e li sts-merger decision or that the decision was animat ed by

discrimi natory intent.

Third, all egat io n s that the DOJ and MDC Defe ndants maint ained the

challenged restr icti ve confinement after learning that the FBI designations were not

based on indivi duali zed suspicion of te r r o r is t threats are also inadequate to

conclude that defendan ts were “not more li kely” concer ned with ensur ing national

and prison security. Majority Op., ant e at 83. Indeed, the conclusi on i s foreclosed

by Ashcroft v. Iq

bal, 556 U.S. at 681–82, because the discrimi nation all egations there

deemed impl a u s ib le in li ght of the more li kely national security explanation for

defe ndants’ actions included asser tions that the MDC Plai ntiffs’ restr icti ve

confinement was not supported by “any indivi dual determination” that such

restr icti ons were “appropr iate or should continue.” First Am. Compl. ¶ 97, App. to

Pet. for Cer t. 173a

, Ashcroft v. Iq bal, No. 07-1015 (U.S. Feb. 6, 2008), avail able at

http://1.usa.gov/ 1CfHJQF. Thus

, the majorit y cannot suggest that when the

81Supre me Court there rejected an equal protec ti o n c h a ll enge to efforts by “the

Nation’s top law enforc ement officers

. . . to keep s u s p e c te d te rror ists in the most

secure conditions avail able until the suspects could be cleared of terror ist activi ty,”

Ashcroft v. Iq

bal, 556 U.S. at 682

– 8 3

, it did not unders tand that plainti ffs were

complai ning of the lack of prior indivi duali zed suspicion. See Majority Op., ante at

82–83. 45

In any event, and as already explained, courts have upheld the imposi tion of

restr icti ve condi t i o n s o f c o n f i n em en t o n l a w full y arre sted pers ons without requiring

indivi duali zed s u spicion of a security threat, recognizing both the difficu lty in

identifyi ng which detainees pose the particular r isk n eeding to be addres sed, and

the ser ious harm that can ensue fr om a fail ure to do so. S ee supr a at 62–63. Thus,

no clearly established law would have alerted r e asonable official s that restr icti ve

confinement without indivi duali zed suspicion was unconstituti onally pun it ive or

discrimi natory in the circumstances pre sented h ere

.

Four th

, a ll e gations that the MDC Defe ndants (1) failed to follow BOP

procedur es requiring “indivi duali zed determination of dangerousn ess or risk” for

restr icti ve confinement, and (2) approved documents falsely repr esen ting that such

Th e li s ts-merger pleadings support no different conclusion for reaso ns just 45

discussed. Se e Majority Op., ante at 84–85.

82determinations had been made

, a lso do not rende r it “not more li kely” that the

challenged conduct was moti vated by national secur ity. See Majority Op., ante at

86. This court has already granted qual ified imm unity to some of these same MDC

Defe nda n ts o n a procedur al due proces s challenge to their failu re to follow BOP

procedur es in connecti o n w i t h the same challenged confinement. See Iq bal v. Hasty,

490 F.3d at 167–68

. In d o in g so, moreover

, Hasty acknowledged that the

“s e p a r a tion” of the MDC Plai ntiffs “from the gener al prison populati on could be

reaso nably unders tood

. . . to relate to matters of national s e c u r it y

, rather than an

ordinary criminal investigati on.” Id. at 167. Hasty further noted that, in 2001–2002,

neither the Supre me Court nor this court had considere d whether BOP

a d mi n istrative segre gation procedur es had to be afforded “to pers ons detaine d

under special conditions of confinement until cleared of connection w ith activi ties

threatening national security.” Id.

The fact that p la inti ffs here use procedur al failu res to impl y discrimi natory

intent rather than to asser t a denial of procedur al due proces s warrants no different

qu a li f ie d imm unity conclusion. As the OIG Report indicat es, by October 1, 2 0 0 1

,

BOP Headquarters had effectively ceded “indivi duali zed” risk a s s e s s ment

resp onsibility for 9/11 detainees to the FBI. A memorandum of that date from

83Michael Cookse y, the BOP Assistant Director for Corr ectional Programs, “directed

all BOP staff, includi ng staff at the MDC, to continue holding S e ptember 11

detainees in the most restr icti ve conditions of confinemen t p o ssible until the

detainees could be ‘reviewed on a case-b y-case basis by t he FBI and cleared of any

involvement in o r knowledge of on-going terror ist activi ties.’” OIG Report 116

(quoti ng Cookse y’s October 1, 2001 memorandum). In these circumstances, even if

the MDC Defe ndants mig ht be faulted for approving documents sugges ting

indivi duali zed risk asses sments of MDC Plai ntiffs that were not made by the BOP,

their actions cannot plausibly impl y discrimi natory inten t b e c ause they are

obviously and more li kely e xplained by reliance on the FBI’s de s ignations of each

MDC Plai ntiff as a pers o n “ of high interest,” or “of interest,” to the ongoing

terror ism i nvestigation.

In sum, as t o both t he DOJ and MDC Defe ndants, the pleadings highli ghted

by the majorit y are insuffici ent to rende r “not more li kely” what the Supre me Court

in Ashcroft v. Iq

bal held “obvious” and “more li kely”: MD C Pl a intiffs were

restr icti vely confined pending FBI-CIA clearance for the legi ti ma te purpose of

ensur ing national security. 556 U.S. at 681–82. Moreover

, to the extent the majorit y

impl ies disc r iminatory intent from the MDC Plai ntiffs’ restr icti ve confinement

84w i t h o u t indivi duali zed suspicion of terror ist connections, no clearly established law

would have alerted ever y reaso nable officer that it viol ated equal pro te c ti o n s o to

confine these lawful ly arre sted il legal ali ens pending clearance. Acc o r d in gly, I

conclude that both the DOJ and the MDC Defe ndants are entitl ed to dismi ssal of the

MDC Plainti ffs’ equal protection clai ms on the ground of qualifi ed imm unity. 46

C. Fourth Amendment Claim

As the majorit y acknowledges, plainti ffs do not asser t that the F ourth

Amendment absolutely prohibi te d them from being strip-sear ched while

incarcerated at the MDC. See Majority Op., ante at 95. Rather, plainti ffs contend

that the frequency with which they were str ip searc hed—eve ry tim e they were

removed from or returne d to their cells, or randomly e v e n when not so moved,

“even when they had no conceivable opportunity to ob ta in c ontraband”—was

constituti onally unreas onable. Compl. ¶ 112. They further all ege that the m anner

in which they were strip searc hed—with female officers pres ent or in view of other

prisoner s and staff, with prohibited videotaping, or with humil iati n g

Because I would dismi ss plainti ffs’ equal protection claim s, I would also dismi ss 46

their § 1985 claim s. See Griffi n v. Brecke nridge, 40 3 U

. S

. 8 8

, 102 (1971) (“The

language [in § 1985(3)] requiring intent to d eprive of equal protection, or equal

privil eges and imm uniti es, me a n s th at there must be some racial, or perh aps

otherwise class-based

, invidi ously discrimi natory animus behind the conspirators’

action.”); accord Reynolds v. Barre tt, 685 F.3d 193, 201–02 (2d Cir. 2012).

85comments—was unconstituti onal. See id. ¶¶ 112–15.

Insofar as plainti ffs seek damages from MDC Defe ndant s H asty and Sher man

for the challenged str ip s earch policy, Ashcroft v. Iq bal does not admit a t heory of

supervisor y li a b il ity on a Bivens claim

. See 556 U.S. at 676–77. Rather, plainti ffs

must plausibly plead that each Bivens defendan t, “through the official ’s o w n

indivi dual actions, has viol ated the Constitution.” Id. at 676. Plai ntiffs do not all ege

that Hasty and Sher man themselves ever participated in any of the challenged strip

searc hes or that they pers onally developed the policy. Th e latt er conduct is

attributed to MDC First Lieutenant Joseph C uciti . See Compl. ¶ 111.

The majorit y never theless concludes that plainti ffs carry their Iq bal pleading

burden by all eging that (1) “Hasty order ed [MDC C a p tain] Lopres ti and Cuciti to

design extre mely re st ri c t i v e c o n d i t i o n s o f c o n f i n em en t

, “ w h i c h w er e “ t h en a p proved

a n d implemented by Hasty and Sher man,” id. ¶ 75; and (2) many of the s tr ip

searc hes “were documented in a ‘visual searc h log’ created by MDC staff for review

by MD C management, includi ng Hasty,” id. ¶ 114. The majorit y holds that these

pleadings are sufficient to all ege Hasty’s and Sher man’s pers onal involvement “in

creating and exec uting” the challen g e d s tr ip-search policy, or at least their

awarene ss of the searc he s “based on the searc h log.” Majority Op., ante at 97–98.

86It then further concludes that neither Hasty nor Sher man is e n ti tled to qual ified

imm unity because

, at the tim e of the MDC Plai n ti f f s ’ confinement, it was clearly

established that strip searc h e s h ad to be “‘rationall y related to legit imat e

government purpose s.’” Id. at 100 (quoti ng Iq bal v. Hasty, 490 F.3d at 172). I cannot

join i n this reason ing.

First, insofar as plainti ffs challenge the fr e qu ency of the strip searc hes, it is

their burden to plead facts sufficient to demo n s tr a te that the challenged policy

lacked a ration a l r elationship to a legit imat e government objective, specificall y,

prison security. S ee Turner v. Safley, 482 U.S. at 89 (establishing standard for

c hallenging prison regulation); Covino v. Patrissi, 967 F.2d at 78–80 (applying

standard to body-cavity searc h challenge). That burden is, moreover

, a heavy one

because it requires a showing that the “logi cal connection between the r e g u la tion

and the asser ted goal is so re mo te a s to rende r the policy arbitrary or irrational.”

Turner v. Safley, 482 U.S. at 89–90. I do not think plainti ffs’ p le a d ings plausibly

all ege that the fre quency wit h which they were s trip searche d was so unre lated to

prison se curity as to be arbitrary or irrational.

Plai nt if fs asser t that they were strip searc hed “even when they had no

conceivable op p o r tunity to obtain contraband.” Compl. ¶ 112. The conclusion

87borr ows from Hodges v. Stanley, a case in which this court reinstated a complaint

challenging a second strip searc h under circumstances where “it seems clear that

there was no possibili ty that Ho d g es could have obtained and concealed

contraband.” 712 F.2d 34, 35 (2d Cir. 1983). Hodges, however

, was decided befor e

Turner and Covino. Thus, courts cann ot assume that it s “no possibili ty” to obtain

contraband conclusion invariab ly e quates to the required showing of no rational

relationship to a legit imat e government purpose

. Notably, Hodges reache d the “no

possibili ty” conclusion in circumstances where the prisone r h a d been searc hed

“imm ediately prior to the searc h forming the basis of his co mp la in t. ” Id. at 35

(emphasis added). Pl a in tiffs here all ege no such imm ediately success ive—and,

th e r e fore, purpose less—strip searc hes. Rather, they complai n of random str ip

searc hes in their cells or of required strip s earche s in circumstances involvi ng

intervening events—e

. g

. , befor e and after non-contact visit s—that plainti ffs

conclusorily maint ain afford e d th em no opportunity to rece ive contraband. See

Compl. ¶ 112. In the aftermath, however

, of an all-too-successful attack on a BOP

guard by a restr icti vely confined terror ist suspect, s e e United States v. Salim

, 690

F.3d at 119–20, it was hardly irrational for prison authoriti es to conclude that

pers ons under investigati on for terror ist connections should be strip searc hed both

88randomly in their cells and wheneve r they were moved from one locati on to another

to ensur e prison security. Hodges cannot be read to make clear to ever y reaso nable

officer that such searc hes were unconstituti onal. Indeed, this is precisely the sort of

“difficu lt j udgment[] concerning instituti onal op erations” that the Supre me Court

h a s c o n c lu ded must be made by “prison admini strators

. . . , and not the courts

. ”

Turner v. S afley, 482 U.S. at 89 (internal qu otation m arks omitted). 47

Second, with resp ect to the manner in which the sear c h e s were conducted,

plainti ffs’ claim s against Has ty an d Sher man depend on the se defe ndants’ re view

The majorit y’s reliance on Iq bal v. Hasty, 490 F.3d at 172, in holding otherwise, see 47

Majority Op., ant e at 98, is mispl aced for the reaso ns already discussed. See supra

at 61–62.

So too is its citati on to N.G. v. Conne cticut

, 382 F.3d 225 (2d Cir. 2004). See

Majority Op., ante at 98 n.44. There, this court held that repe ti ti ve strip searc hes

after supervisor y transpor t o f p e rsons confined in juvenil e facili ties were not

reaso nable under the Fourth Amendment in the absen c e of reaso n to suspect the

juvenil e’s posses sion of contraband. See N.G. v. Conne cticut

, 382 F. 3 d a t 233–34.

It is hardly apparen t that the same conclusion a p p lies where the pers ons being

searc hed are adults a n d w h e r e th ey are being confined subject to clearance of

terror ist activi ties. The higher risks to prison and public safety of missed c o n t ra band

in that circumstance, as well as terror ists’ proved a b il ity to evade even restr icti ve

c o n f ine ment does not admit a conclusion that N.G. clearly establishe d

unreas onablenes s in the context here at issue. See g e n e r a ll y id. at 234

(acknowledging that continuous custody cannot “guaran tee” protection for

subse quent access to contrab and).

Even if such a conclusion were possible, however

, N.G. was not decided until

2004. Thus, the m ajority can hardly rely on t hat decision as the clearly established

law that, in late 2001, put b e y o n d debate that the strip-sear ch policy here at issue

viol ated the Fourth Amendment.

89of a visual searc h lo g a ll e g edly created by MDC staff for management. The

“possibili ty” that defendan ts reviewed such logs is not enough, however

, to state a

plausible claim against them for the manner of the searc hes. Ashcroft v. Iq bal, 556

U.S. at 678 (stating that “plausibi li ty s ta n d ard

. . . asks for more than a shee r

possibili ty that a defendan t has acted unlawful ly”). Indeed, even if their review of

the logs were plausible, it wo u ld

, a t best, support an inference of Hasty’s and

Sher man’s knowledge of the manner in which the searc hes were being conducted.

Further fact s in d ic a ting more than negligence in these defendan ts’ failu re to take

corre ctive action would b e n e c e ssary plausibly to plead that through their “own

indivi dual acti ons,” each had “violat ed the C onstituti on.” Id. at 676; see also, e.g.,

O’Neill v. Krzeminski, 839 F.2d 9, 11 n.1 (2d Cir. 1988) (“Negligence is not a basis of

li abili ty for constituti onal torts.”).

I would thus grant Hasty and Sher man dism is s a l o f the MDC Plai ntiffs’

Fourth Amendment claim on the ground of qualifi ed imm unity.

* * *

In sum, I resp ectfull y dissent from the judgment entere d on appeal in this case

insofar as it all ows the MDC Plai ntiffs to pursue money damages on policychallenging Fifth Amendment claim s for puniti ve and discrimi natory confinement

90against defendan ts Ashcroft, Muell er, Zigl ar, H a st y, and Sher man, and an attendant

p olicy-chal lenging Fourth A m en d m en t c l a i m f o r u n re a so n a bl e st ri p se a rc h es a g a i n st

defendan ts Hasty and Sher man. I conclude that no establis h ed Bivens action is

avail able for plainti ffs to pursue these c la im s and that signifi cant factors counsel

hesitation in extending Bivens to an action challenging exec utive policy pertaining

to imm igration and national security made in a tim e of crisis. In any event, I would

grant defendan ts’ moti ons for dismi ssal on grounds of qual ified imm unity because

plainti ffs fail either to plead plausible constituti onal viol a ti o n s or to demonstrate

that clearly established law would have alerted ever y reaso nable official that the

challenged actions were unlawful.

91