2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-14-2011

Maria Argueta v. US Immigration and Customs Enf

Precedential or Non-Precedential: Precedential

Docket No. 10-1479

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 10-1479

______________

MARIA ARGUETA; WALTER CHAVEZ; ANA 

GALINDO; W.C., by and through his parents Walter Chavez 

and Ana Galindo; ARTURO FLORES; BYBYANA ARIAS; 

JUAN ONTANEDA; VERONICA COVIAS; YESICA 

GUZMAN

v.

UNITED STATES IMMIGRATION AND CUSTOMS 

ENFORCEMENT ("ICE"); 

JULIE L. MYERS, Assistant Secretary for Immigration and 

Customs Enforcement; JOHN P. TORRES, Deputy Assistant 

Director for Operations, Immigration and Customs 

Enforcement; SCOTT WEBER, Director, Office of Detention 

and Removal Operations, Newark Field Office; 

BARTOLOME RODRIGUEZ, Former Director, Office of 

Detention 

and Removal Operations, Newark Field Office; JOHN DOE 

ICE AGENTS 1-60; JOHN SOE ICE SUPERVISORS 1-30; 

JOHN LOE PENNS GROVE OFFICERS 1-10

 

Julie L. Meyers, Bartolome Rodriguez 

John P. Torres, Scott Weber, 

Appellants
2

______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2-08-cv-01652-001)

District Judge: Hon. Peter G. Sheridan

______________

Argued April 14, 2011

BEFORE: FISHER, JORDAN, and COWEN, Circuit Judges

(Filed: June 14, 2011)

Gjon Juncaj, Esq.

Melanie Keiper, Esq.

Nicole Prairie, Esq.

United States Department of Justice

Office of Immigration Litigation

P.O. Box 868

Ben Franklin Station

Washington, DC 20001

Edward J. Martin, Esq.

Sarah Elisabeth Whitman, Esq.

United States Department of Justice

Torts Branch, Civil Division

P.O. Box 7146

Ben Franklin Station

Washington, DC 20044
3

Howard S. Scher, Esq. (Argued)

United States Department of Justice

Civil Division

Room 7239

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

 Counsel for Appellants

Baher A. Azmy, Esq. (Argued)

Seton Hall Law School

833 McCarter Highway

Newark, NJ 07102

Heather Colleen Bishop, Esq.

Natalie J. Kraner, Esq.

Aurora Franceca Parrilla, Esq.

David Marshall Reiner, Esq.

R. Scott Thompson, Esq.

Scott L. Walker, Esq.

Catherine Weiss, Esq.

Kenneth H. Zimmerman, Esq.

Lowenstein Sandler

6t Livingston Avenue

Roseland, NJ 07068

 Counsel for Appellees

Claire Prestel, Esq.

Public Justice

1825 K Street, N.W.

Suite 200

Washington, DC 20006
4

 Counsel for Public Justice;

 Prisoners‟ Rights Project of the Legal

 Aid Society of the City of New York;

 Pennsylvania Institutional Law Project, 

 Amicus Appellees

Lawrence S. Lustberg, Esq.

Gibbons

One Gateway Center

Newark, NJ 07102-5310

 Counsel for LatinoJustice PRLDEF;

 American Civil Liberties Union of New Jersey;

 Asian American Legal Defense and

 Education Fund;

 Catholic Charities of the Archdiocese of Newark,

 Amicus Appellees

 

______________

OPINION

______________

COWEN, Circuit Judge.

Defendants Julie L. Myers, John P. Torres, Scott 

Weber, and Bartolome Rodriguez (“Appellants”) appeal from 

the orders of the United States District Court for the District 

of New Jersey denying their motions to dismiss on qualified 

immunity and personal jurisdiction grounds. This Bivens

action arises out of (in the words of the Plaintiffs‟ Second 

Amended Complaint) an alleged “practice of unlawful and 
5

abusive raids of immigrant homes across the state of New 

Jersey” conducted by Immigration and Customs Enforcement 

(“ICE”) agents under a nation-wide program instituted by the 

Department of Homeland Security (“DHS”) known as 

“Operation Return to Sender.” (JA530.) The nine named 

Plaintiffs in this action were the alleged victims of a number 

of raids executed in New Jersey. On the other hand, 

Appellants are or were high-ranking federal officials, and 

they contend, inter alia, that the individual capacity claims for 

damages against them must be dismissed pursuant to the 

qualified immunity doctrine and the Supreme Court‟s ruling 

in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). 

We conclude that Plaintiffs failed to allege a plausible 

Bivens claim against these four officials. We will reverse the 

District Court‟s denial of qualified immunity (and therefore 

need not—and do not—consider whether we have pendent 

appellate jurisdiction over Appellants‟ appeal from the 

District Court‟s personal jurisdiction ruling or whether the 

District Court committed reversible error by denying the 

motion to dismiss on personal jurisdiction grounds).

I.

A. The Allegations

We begin with the allegations in Plaintiffs‟ lengthy 

Second Amended Complaint. The Plaintiffs named in the 

Second Amended Complaint resided in New Jersey, are of 

Latino origin, and were allegedly subjected to unlawful and 

abusive raids conducted under Operation Return to Sender 
6

sometime between August 2006 and April 2008.1 In addition 

to a number of as yet unknown ICE agents and local police 

officers from Penns Grove, New Jersey (who allegedly 

participated in the August 1, 2006 raid of Guzman‟s house 

and were the targets of several claims under 42 U.S.C. § 1983 

and the New Jersey Constitution), they named as Defendants: 

(1) ICE; (2) Myers, who “is, and was at all relevant times, the 

Assistant Secretary for Homeland Security for Immigration 

and Customs Enforcement, located in Washington D.C.” 

(JA534); (3) Torres, who “is Deputy Assistant Secretary for 

Operations for ICE, and was at all relevant times, the Director 

(or Acting Director) of the ICE Office of Detention and 

Removal Operations („DRO‟) in Washington D.C.” (id.); (4) 

Weber, the Director of the DRO Field Office in Newark, New 

Jersey; and (5) Rodriguez, the former Acting Field Director 

 

1

 The nine Plaintiffs named in the Second Amended 

Complaint were (in alphabetical order): (1) Maria Argueta, 

who held lawful temporary protection status; (2) Bybyana 

Arias, an American citizen; (3) Walter Chavez, a lawful 

permanent resident; (4) Veronica Covias, a lawful permanent 

resident; (5) Arturo Flores, an American citizen; (6) Ana 

Galindo, a lawful permanent resident; (7) Yesica Guzman, a 

lawful permanent resident; (8) Juan Ontaneda; and (9) W.C., 

the minor child of Chavez and Galindo and an American 

citizen.

The raids allegedly took place on or about the 

following dates (in chronological order): (1) August 2006 

(Guzman); (2) November 13, 2006 (Flores and Arias); (3) 

March 26, 2007 (Covias); (4) December 7, 2007 (Ontaneda); 

(5) January 29, 2008 (Argueta); and (6) April 2, 2008 

(Chavez, Galindo, and W.C.). 
7

of the Newark DRO Field Office. Appellants (as well as the 

unknown ICE agents) were specifically named in both their 

individual and official capacities.

Myers was responsible for implementing the 

Immigration and Nationality Act and administering ICE. 

“ICE press releases describing arrests in New Jersey under 

Operation Return to Sender have repeatedly stated that those 

arrests were made pursuant to the nationwide immigration 

enforcement strategy announced by defendant Myers and 

Michael Chertoff, Secretary of the Department of Homeland 

Security.” (JA534.) In turn, DRO is the ICE branch 

responsible for coordinating “the removal of foreign nationals 

not entitled to remain in the country.” (Id.) As DRO 

Director, Torres oversaw the apprehension, detention, and 

removal of foreign nationals charged with violating federal 

immigration law, and he supervised law enforcement officers 

assigned to DRO field offices and, in particular, “Fugitive 

Operations Teams” (“FOTs”). (JA535.) Weber and 

Rodriguez were responsible for managing ICE enforcement 

activities in New Jersey, including the implementation of

Operation Return to Sender.

Plaintiffs devoted much of their pleading to an 

extensive discussion of this implementation. Since 2002, 

DRO has overseen the National Fugitive Operation Program. 

This program was established to arrest and remove “so-called 

immigration „fugitives,‟” defined by ICE as either individuals 

with outstanding deportation orders or persons who failed to 

report to a DRO officer after receiving notice to do so. 

(JA537.) As part of increased enforcement efforts (which 

allegedly included doubling the number of New Jersey FOTs 

from two to four), each and every FOT in the nation was 
8

allegedly ordered to arrest 1,000 fugitive aliens per year. 

According to the Second Amended Complaint, “[t]his quota 

represented an 800% increase on the previous quota of 125 

arrests per year, mandated just two years earlier.” (JA538.) 

ICE officially commenced Operation Return to Sender on 

May 26, 2006, with the program purportedly directed at 

apprehending fugitive aliens and especially aliens with 

criminal records.

The number of individuals arrested by FOTs increased 

as a result of these changes. For instance, New Jersey FOT 

arrest numbers went from 1,094 in FY 2006 to 2,079 in FY 

2007. Plaintiffs specifically alleged that, despite the 

supposed purposes of the operation itself, “[t]he majority of 

individuals arrested in New Jersey under Operation Return to 

Sender . . . are neither criminals nor fugitives.” (JA542.) 

Accordingly, 87% of the individuals arrested in New Jersey 

in FY 2007 evidently had no criminal history, and ICE 

statistics indicated that as few as one in three individuals 

arrested in New Jersey was actually a fugitive alien. “The 

remaining individuals arrested were a mix of undocumented 

immigrants and, upon information and belief, United States 

citizens, permanent residents and visa-holders who have 

never had any court order, warrant, or criminal conviction 

against them.” (Id.) ICE referred to these persons as 

“collateral arrests,” even though this “euphemism” allegedly 

“obfuscated” the reality that its enforcement activities often 

served as pretexts for sweeping up large numbers of 

immigrants. 2 (Id.) According to a 2007 report from the DHS 

 

2

 We note that a September 29, 2006 memorandum from 

Torres, obtained by Plaintiffs after the filing of the initial 

complaint, stated that “collateral” arrests could be counted 
9

Inspector General, the database used to locate fugitive aliens 

“is outdated and inaccurate in up to 50% of cases.” (JA531.) 

The report further stated that DRO began hiring “lower-level, 

less experienced officers for fugitive operations” in 2006 and

that “some fugitive operations agents have not completed the 

Fugitive Operations Training Program—2004 guidelines 

allow the agents to work for up to two years before receiving 

necessary training.” (JA544 (citing JA242-JA311).) ICE‟s 

enforcement activities were also the subject of a February 13, 

2008 hearing before the House Judiciary Subcommittee on 

Immigration, Citizenship, Refugees, Border Security, and 

International Law. At this hearing, an ICE representative 

allegedly acknowledged that American citizens were detained 

and even deported, and the chair remarked that we “had 

reached an era „where an overzealous government is 

interrogating, detaining and deporting its own citizens while 

treating non-citizens even worse.‟” (JA543.) 

Plaintiffs explained that the “practice” of unlawful and 

abusive raids flourished as a predictable consequence of the 

“arbitrary” and “exponentially-increased” quotas. (JA530.) 

“Under pressure from these quotas immigration agents have 

regularly disregarded the obligation to secure a judicial 

warrant or probable cause in carrying out unlawful entries and 

dragnet searches of homes in which the agents only loosely 

suspect immigrant families may reside.” (Id.) Plaintiffs 

alleged that their own personal experiences (also described in 

some detail in their pleading) “are typical of the „Operation 

Return to Sender‟ home raid modus operandi throughout the 

state and the nation, which has been comprehensively 

 

towards the alleged quota in certain circumstances. 
10

documented through media reports and first-hand accounts 

from other victims.” (JA531.) 

Specifically, the raids allegedly violated the Fourth 

and Fifth Amendments to the United States Constitution. 

Due to the flaws in the database and other deficiencies, the 

unconstitutional conduct allegedly began even before the 

team of ICE agents arrived at a particular residence. In other 

words, “[a]gents regularly raid homes where the purported 

„fugitive‟ target is not present and could not be present.” 

(JA531.) It is uncontested that the agents must obtain consent 

in order to enter a person‟s home. According to Plaintiffs, the 

agents typically failed to obtain the requisite consent.3 The 

 

3

 Among other things, Plaintiffs alleged that: (1) a home 

raid typically occurred in the pre-dawn hours of the morning, 

with multiple ICE agents surrounding a home believed to 

house one or more immigrant families and pounding furiously 

on the door and windows; (2) the agents used a variety of 

frequently deceptive and even coercive tactics to get an 

occupant to open the door, including (a) falsely identifying 

themselves as police officers (when they were actually 

administrative officers authorized to enforce federal 

immigration laws but usually lacking general police powers), 

(b) enlisting the aid of local police officers to deceive the 

occupant as to their identities (with such misrepresentations 

taking on special importance in New Jersey because state 

officials encouraged immigrant populations to assist local 

police without fear of immigration consequences), or (c) 

simply storming into the home once the occupant opened the 

door believing there was an emergency (and sometimes even 

physically breaking down the door); (3) some agents treated 

the raids as a “perverse sport,” as illustrated by an April 30, 
11

pattern of unconstitutional conduct then allegedly continued 

once the ICE agents actually entered the home.4 Plaintiffs 

claimed that this whole process was then repeated at other 

homes until the agents‟ van was filled. According to 

 

2007 e-mail from a Connecticut ICE agent to a state police 

trooper inviting the state troopers to an upcoming raid in New 

Haven, promising a “„fun time,‟” and asking if any of “„you 

guys can play‟” (JA539 (quoting JA236)); and (4) for many 

agents, deceit and dishonesty became a regular part of the 

raids, as demonstrated by a reported incident from Freehold, 

New Jersey, in which the ICE team leader, after the occupants 

refused to open the door, asked to have a marked police 

vehicle pull up to the house and a uniformed police officer 

knock on the door, with ICE then “tak[ing] over the 

investigation‟” (JA540 (quoting JA240)). 

 

4

Plaintiffs specifically claimed, among other things, that: 

(1) multiple ICE agents typically entered and quickly swept 

through the home, displaying or brandishing firearms and 

even occasionally pointing their weapons at the occupants 

who often were partially undressed or sitting terrified in their 

night clothes; (2) they then usually ordered all of the 

occupants to a central location in the home and then 

interrogated them about their identities and immigration 

statuses despite the lack of any reasonable basis for believing 

they were not citizens and the fact that the purported target of 

the raid was frequently unknown to the occupants themselves; 

(3) the agents, in front of children and other family members, 

handcuffed individuals they suspected were unlawfully 

present in this country and marched them into a waiting van; 

and (4) in some raids, the ICE agents were verbally and even 

physically abusive. 
12

Plaintiffs, the agents‟ actions had an especially devastating 

impact on children (most of them citizens), who had to watch 

“law enforcement agents sweeping through their homes with 

guns, ordering them and their parents to gather together and 

suddenly handcuffing and dragging away their parents in the 

middle of the night.” (JA541.) 

With respect to Appellants, Plaintiffs asserted that, 

“[d]espite aggressively increasing the arrest quotas and the 

number of agents participating in „Operation Return to 

Sender,‟ and thereafter being notified—via press reports, 

lawsuits, and congressional testimony—of the widespread 

allegations of unconstitutional and abusive conduct by ICE 

agents as part of this program, the DHS supervisory officials 

named in this Complaint have continued to foster an 

institutional culture of lawlessness.” (JA531-JA532.) In 

short, these supervisory officials allegedly failed to develop 

meaningful guidelines or oversight mechanisms to ensure that 

home searches were conducted in a constitutional fashion, to 

furnish their agents with adequate training (and, in the case of 

some newer agents, any training whatsoever) on the lawful 

execution of lawful operations, and to provide some sort of 

basic accountability for violations of the Constitution. 

Appellants instead “have proudly publicized the increasing 

numbers of arrests made as a result of the unconstitutional 

raids that continue to be carried out in the shadows and in the 

dark of night.” (JA532.) Plaintiffs sought to hold 

accountable “those who conducted, directed, and sanctioned 

the complained-of conduct.” (Id.)

According to Plaintiffs, the “nationwide pattern and 

practice” of unconstitutional conduct described above “has 

been the subject of widespread media reporting as well as 
13

multiple lawsuits filed in other federal district courts.” 

(JA559.) Plaintiffs cited to five lawsuits, all from outside this 

Circuit. (Id. (citing Barrera v. Boughton, No. 07-cv-1436 (D. 

Conn. Sept. 26, 2007); Aguilar v. ICE, No. 07-cv-8224 

(S.D.N.Y. Sept. 20, 2007); Flores-Morales v. George, No. 07-

cv-0050 (M.D. Tenn. July 5, 2007); Reyes v. Alcamtar, No. 

07-cv-2271 (N.D. Cal. Apr. 26, 2007); Mancha v. ICE, No. 

06-cv-2650 (N.D. Ga. Nov. 1, 2006)).) Members of Congress 

also allegedly raised questions about the raids. In a letter 

dated June 11, 2007, three legislators expressed their 

concerns about reports of misconduct occurring during raids 

executed in New Haven, Connecticut, on June 6, 2007 (i.e., 

ICE agents pushing their way into homes without search 

warrants, inappropriately treating both adults and children, 

and ultimately catching only four fugitives out of the thirtyone arrested). The raids were also allegedly criticized in a 

March 5, 2008 report by the United Nations Special 

Rapporteur on the Human Rights of Migrants. Plaintiffs 

alleged that reports of raids—and related misconduct—were 

especially prevalent in New Jersey, and they specifically cited 

to a number of newspaper articles purportedly describing 

incidents of misconduct dating from May 2006 to February 

2008. 

Plaintiffs included a whole section in their Second 

Amended Complaint entitled “Defendants‟ Supervisory 

Responsibility.” (JA561 (emphasis omitted).) In this section, 

they again attempted to explain in more detail the four 

Appellants‟ alleged involvement in the unconstitutional 

conduct described above.

Accordingly, Plaintiffs made the following specific 

allegations with respect to Myers and Torres: (1) these two 
14

Appellants oversaw the implementation of a five-fold 

increase in the number of FOTs between 2005 and 2007 and 

approved a “remarkable” 800% increase in the arrest quota 

for each team without providing the necessary training to 

prevent ICE agents, who now faced new pressures from the 

drastically increased quota, from acting abusively and 

unlawfully (id.); (2) Myers and Torres “facilitated the 

creation of a culture of lawlessness and lack of accountability 

within an agency they supervise” (id.); (3) in recent years, 

they “have been repeatedly on notice of the routine 

unconstitutional home-raid practices by ICE agents 

throughout the country,” specifically because “defendants 

Myers and Torres have been sued numerous times for their 

roles in these practices” (id. (citing Aguilar (Myers and 

Torres); Flores-Morales (Myers); Mancha (Myers and 

Torres)); (4) the National Immigration Forum sent a letter on 

June 11, 2007 to Chertoff questioning the conduct of ICE 

agents in the June 2007 New Haven raids; (5) Myers herself 

responded to the National Immigration Forum 

correspondence in a letter dated July 6, 2007, in which she 

acknowledged that only five of the twenty-nine individuals 

arrested in New Haven were fugitive aliens, agents routinely 

lacked judicially-issued warrants and thereby had to obtain 

voluntary and knowing consent before entry, and (as 

emphasized by Plaintiffs) “such consent was ensured simply 

by assigning a Spanish-speaking officer to each Fugitive 

Operations Team” (JA562); (6) Torres possessed “direct 

responsibility for the execution of fugitive operations” and, 

like Myers, he was made aware of the unconstitutional home 

raid practices of his subordinates through the media and 

lawsuits filed against him dating back to November 2006; (7) 

also like Myers, Torres received specific notice of the 

misconduct in New Haven by means of a June 2007 
15

telephone call from the city‟s own mayor claiming that ICE 

agents “„barged into houses without warrants and verbally 

abused the people and children were manhandled‟” and 

asking whether “Torres‟s office should continue to allow such 

home raids to be conducted with these allegations pending” 

(id. (quoting JA317)); (8) despite their awareness of the 

unconstitutional home raid practices through lawsuits, 

Congressional inquiries, national media reports, and other 

sources, Myers and Torres repeatedly failed to conduct any 

meaningful investigations or provide any specific guidelines 

or training to ensure that such raids satisfied constitutional 

requirements and also, upon information and belief, failed to 

discipline any responsible agents in a meaningful fashion; and 

(9) on the contrary, Myers and Torres, “have contributed to 

such unlawful conduct by continuing to publicize, and laud as 

„successful,‟ their department‟s dramatic increase in 

immigration arrests over the past two years” in several press 

releases, and their behavior further confirmed “that the high 

number of arrests were made pursuant to the nationwide 

interior immigration enforcement strategy announced by 

defendant Myers and Secretary Chertoff” (JA563 (citations 

omitted)).5 

 

5

Plaintiffs also submitted to the District Court a June 13, 

2008 newspaper article stating that New Jersey Senator 

Robert Menendez had raised serious concerns about 

overzealous and biased enforcement actions, including raids 

executed in New Jersey, in a meeting with Chertoff and 

Myers in May 2008. However, both officials purportedly 

disregarded his criticism and were “„in total denial.‟” 

(JA441.) 
16

Plaintiffs advanced a similar set of allegations with 

respect to Weber and Rodriguez: (1) as Newark DRO Field 

Office Directors, the two men were directly responsible for 

overseeing fugitive operations and the execution of Operation 

Return to Sender in New Jersey, and they both made frequent 

reports and public comments regarding the number of arrests 

and related matters; (2) “[c]omments to the media by each of 

them regarding allegations of inappropriate action by their 

fugitive operations personnel, including unconstitutional 

home raids, suggest that defendants Rodriguez and Weber at 

best acquiesced, and at worst, encouraged such behavior” 

(id.); (3) for example, when Weber was confronted by the 

press with specific allegations regarding a pattern of raids 

conducted without search warrants or consent, he was quoted 

in a newspaper article as saying that “„I don‟t see it as 

storming a home . . . . We see it as trying to locate someone‟” 

(JA564 (quoting Elizabeth Llorente, Immigration Officials 

Say Raids On Illegals Are Within The Law, The Record 

(Hackensack, N.J.), Jan. 2, 2008)); and (4) upon information 

and belief, Weber and Rodriguez (a) knew that ICE agents 

were entering and searching New Jersey homes without 

search warrants and without the requisite consent, (b) failed 

to implement any guidelines, protocols, training, oversight, or 

record-keeping requirements to ensure that agents acted 

within constitutional limitations, (c) failed to conduct any 

substantial investigations into allegations of unconstitutional 

home raids of which they were made aware or otherwise 

discipline any responsible agent in a meaningful fashion, and 

(d) instead simply continued to publicize the “„successful‟” 

increase in arrests in New Jersey over the past two years 

“while allowing the unconstitutional means for many of the 

arrests to continue unchecked” (id.).
17

We come to the actual causes of action asserted by 

Plaintiffs. In total, the Second Amended Complaint 

contained sixteen separate claims. The various federal 

Defendants, however, were only named in the first six claims. 

In particular, these six Bivens claims were: (1) a claim by all 

Plaintiffs for unreasonable home entries in violation of the 

Fourth Amendment; (2) a claim by all Plaintiffs for 

unreasonable home searches in violation of the Fourth 

Amendment; (3) a claim by all Plaintiffs for unreasonable 

seizures in violation of the Fourth Amendment; (4) a Fourth 

Amendment claim for excessive force by Chavez, Galindo, 

W.C., and Guzman; (5) a Fifth Amendment substantive due 

process claim by Chavez, Galindo, W.C., and Guzman; and 

(6) a Fifth Amendment equal protection claim by Ontaneda 

against all federal Defendants with the sole exception of ICE.

Each of these six Bivens claims contained an 

equivalent allegation specifically addressing the Appellants‟ 

alleged personal liability. The first claim, for instance, stated 

the following: “Upon information and belief, defendants 

Myers, Torres, Weber, and Rodriguez also participated in, 

directed, or knew of and acquiesced in the violation of 

plaintiffs‟ rights; tolerated past or ongoing misbehavior of 

this kind; or were deliberately indifferent to the risk that ICE 

officers, lacking clear training and under the pressure of 

sharply-increased quotas, would violate the Fourth 

Amendment rights of individuals suspected of being 

undocumented immigrants to the United States.” (JA565.)

Finally, Plaintiffs sought relief in the form of 

compensatory, consequential, and punitive damages, 

attorney‟s fees, and an injunction against “all further 

intimidation of plaintiffs Walter Chavez, Ana Galindo, and 
18

W.C., and any and all entry into the home of plaintiffs Walter 

Chavez, Ana Galindo, and W.C. absent a warrant issued by a 

judicial officer or informed, voluntary consent by either 

plaintiff Chavez or plaintiff Galindo.” (JA581.)

B. Procedural History and the District Court’s 

Rulings

Plaintiffs filed their original Complaint on April 3, 

2008, and they then filed an amended pleading on May 22, 

2008. The federal Defendants moved to dismiss pursuant to 

Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 

12(b)(6). On May 7, 2009, the District Court, for the most 

part, denied the motion. Among other things, it specifically 

“ordered that Defendants‟ motion to dismiss claims against 

the Washington, D.C.-based supervisory defendants, Myers 

and Torres, for lack of personal jurisdiction is denied.” (JA45 

(emphasis omitted).) It further “ordered that Defendants‟ 

motion to dismiss claims on the ground of qualified immunity 

against the four supervisory defendants, Myers, Torres, 

Weber, and Rodriguez is denied without prejudice” and 

allowed for “limited discovery” (in the form of interrogatories 

and a single deposition of each Appellant) as well as for the 

issue of qualified immunity to be raised again following this 

discovery. (Id. (emphasis omitted).) In its accompanying 

opinion, the District Court purported to apply the Supreme 

Court‟s ruling in Bell Atlantic v. Twombly, 550 U.S. 44 

(2007), to the allegations against Appellants. In short, it 

concluded that Plaintiffs sufficiently alleged that Appellants 

knew of and then acquiesced in the wrongdoing of their 

subordinates and thereby adequately stated a claim that 

Appellants possessed the degree of personal involvement 

required for liability under Bivens.
19

On May 18, 2009, the Supreme Court decided Iqbal. 

Appellants moved for reconsideration based on this new 

opinion, and, following the filing of the Second Amended 

Complaint on June 8, 2009 (which merely identified one of 

the previously anonymous Plaintiffs), moved to dismiss 

pursuant to Rules 12(b)(1), 12(b)(2), 12(b)(6), and 15. On 

January 28, 2010, the District Court denied the motion to 

dismiss without prejudice “except with respect to plaintiff 

Ontaneda‟s equal protection claim which is dismissed.” 

(JA64A.) 

In its opinion, the District Court rejected Appellants‟ 

theory that the Supreme Court‟s decision worked a substantial 

change in the existing law governing the qualified immunity 

analysis and the liability of supervisors, at least in the specific 

circumstances presented by the current proceeding. Because 

Plaintiffs advanced claims under the Fourth Amendment, they 

were not required to show discriminatory purpose (unlike 

their counterpart in Iqbal who brought a claim of invidious 

discrimination under the First and Fifth Amendments). 

According to the District Court, they therefore adequately 

“allege that [Appellants] had actual knowledge, initiated, and 

directed their subordinate agents to go beyond the limits of 

their non-judicial warrants in violation of Plaintiffs‟ Fourth 

Amendment rights to be free from illegal searches and 

seizures.” Argueta v. U.S. ICE, No. 08-1652, 2010 WL 

398839, at *6 (D.N.J. Jan. 27, 2010). In other words, “there 

are sufficient factual allegations set forth in the Complaint for 

the Court, in applying its experience and common sense, to 

conclude that there is a plausible claim against each 

[Appellant] that their personal involvement, direction and 

knowledge or acquiescence permitted a search of the 

residence of plaintiffs without consent in violation of the 
20

Fourth Amendment.” Id. at *9. The District Court, however, 

did explain that Iqbal mandated the dismissal of the equal 

protection claim advanced by Ontaneda because Plaintiffs 

conceded that there was no direct evidence of any purposeful 

discrimination.

Appellants filed a timely notice of appeal. We 

subsequently allowed for the filing of two amicus briefs in 

support of Plaintiffs and the District Court‟s rulings, which 

were submitted by: (1) Amici Curiae Public Justice, the 

Prisoners‟ Rights Project of the Legal Aid Society of the City 

of New York, and the Pennsylvania Institutional Law Project; 

and (2) Amici Curiae LatinoJustice PRLDEF, the American 

Civil Liberties Union of New Jersey, the Asian American 

Legal Defense and Education Fund, and Catholic Charities of 

the Archdiocese of Newark.

II.

The District Court possessed subject matter 

jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. 

Plaintiffs agree that this Court has appellate jurisdiction over 

Appellants‟ appeal from the District Court‟s qualified 

immunity rulings pursuant to the collateral order doctrine. In 

Iqbal, the Supreme Court determined that the denial of a 

motion to dismiss on qualified immunity grounds filed by the 

United States Attorney General and the FBI Director 

constituted an appealable collateral order. Iqbal, 129 S. Ct. at 

1945-47. Pursuant to Iqbal, our appellate jurisdiction extends 

beyond merely determining whether the complaint avers a 

clearly established constitutional violation, and we also have 

the power to consider the sufficiency of the complaint itself. 

Id. at 1946-47. “[W]hether a particular complaint sufficiently 
21

alleges a clearly established violation of law cannot be 

decided in isolation from the facts pleaded.” Id. at 1946. 

Accordingly, “the sufficiency of [a plaintiff‟s] pleadings is 

both „inextricably intertwined with‟ and „directly implicated 

by‟ the qualified immunity defense.” Id. at 1946-47 (citations 

omitted). Because we dispose of this appeal on qualified 

immunity grounds, we need not—and do not—decide 

whether we also possess pendent appellate jurisdiction as to 

the District Court‟s denial of the motion to dismiss the 

individual capacity claims against Myers and Torres on 

personal jurisdiction grounds. We exercise plenary review 

over the District Court‟s qualified immunity rulings. See, 

e.g., Santiago v. Warminster Township, 629 F.3d 121, 128 

(3d Cir. 2010); Atkinson v. Taylor, 316 F.3d 257, 261 (3d

Cir. 2003). 

III.

In Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388 (1971), the Supreme Court “„recognized for the 

first time an implied private action for damages against 

federal officers alleged to have violated a citizen‟s 

constitutional rights.‟” Iqbal, 129 S. Ct. at 1947-48 (quoting 

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001)). It is 

also well established that government officials are immune 

from liability for damages where their conduct “does not 

violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.” Harlow v. 

Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). 

In this case, Plaintiffs never alleged in their Second 

Amended Complaint that Appellants actually adopted a 

facially unconstitutional policy. For instance, they did not 

claim that Appellants, as part of Operation Return to Sender, 
22

ever ordered ICE agents to storm into homes without 

obtaining the requisite consent. Plaintiffs instead claimed that 

these four individuals should be held accountable because, 

among other things, they knew of—and nevertheless 

acquiesced in—the unconstitutional conduct of their 

subordinates. The District Court determined that Plaintiffs 

could pursue a claim under the Fourth Amendment based on a 

“knowledge and acquiescence” theory because the Fourth 

Amendment does not require proof of a discriminatory or 

unlawful purpose (and it further concluded that Appellants 

adequately alleged such a claim in their pleading). In 

response, Appellants have argued that: (1) at least after Iqbal, 

“knowledge and acquiescence,” “failure to train,” and similar 

theories of supervisory liability are not viable in the Bivens

context and, on the contrary, a supervisor may be held liable 

only for his or her direct participation in the unconstitutional 

conduct; and (2) even under such now defunct theories of 

liability, Plaintiffs failed to allege a facially plausible Bivens

claim against Appellants.

 

We recently observed that “[n]umerous courts, 

including this one, have expressed uncertainty as to the 

viability and scope of supervisory liability after Iqbal.” 

Santiago, 629 F.3d at 130 n.8 (citing Bayer v. Monroe Cnty. 

Children & Youth Servs., 577 F.3d 186, 190 n.5 (3d Cir. 

2009); Dodds v. Richardson, 614 F.3d 1185, 1194 (10th Cir. 

2010); Parrish v. Ball, 594 F.3d 993, 1001 (8th Cir. 2010)). 

To date, we have refrained from answering the question of 

whether Iqbal eliminated—or at least narrowed the scope 

of—supervisory liability because it was ultimately 

unnecessary to do so in order to dispose of the appeal then 

before us. Id.; Bayer, 577 F.3d at 190 n.5. We likewise make 

the same choice here because we determine that Plaintiffs 
23

failed to allege a plausible claim to relief on the basis of the 

supervisors‟ “knowledge and acquiescence” or any other 

similar theory of liability. Accordingly, we need not (and do 

not) decide whether Appellants are correct that a supervisor 

may be held liable in the Bivens context only if he or she 

directly participates in unconstitutional conduct. 

A. Iqbal, Liability of Supervisors, and Pleading 

Standards

We begin our analysis with the Supreme Court‟s own 

recent opinion in Iqbal. This case arose out of the federal 

government‟s response to the terrorist attacks on September 

11, 2001, which the Court characterized as “„a national and 

international security emergency unprecedented in the history 

of the American Republic.‟” Iqbal, 129 S. Ct. at 1953 

(citation omitted). 

The FBI and other entities within the Department of

Justice began a massive investigation to identify the 

perpetrators and prevent any further attacks. Id. at 1943. A 

subset of 184 high-interest detainees were identified and held 

under special restrictions designed to prevent communication 

with either the general prison population or the outside world. 

Id. Iqbal, a citizen of Pakistan and a Muslim (who was 

arrested on immigration-related charges, pled guilty, and was 

eventually deported), was one of these high-interest detainees. 

Id. “The defendants [in his Bivens action] range from the 

correctional officers who had day-to-day contact with 

respondent during the term of his confinement, to the wardens 

of the MDC facility, all the way to petitioners [then-Attorney 

General Ashcroft and FBI Director Mueller]—officials who 

were at the highest level of the federal law enforcement 
24

hierarchy.” Id. (citations omitted). The complaint 

specifically alleged that “„the [FBI], under the direction of 

Defendant MUELLER, arrested and detained thousands of 

Arab Muslim men . . . as part of its investigation of the events 

of September 11,‟” and “„[t]he policy of holding postSeptember 11th detainees in highly restrictive conditions of 

confinement until they were „cleared‟ by the FBI was 

approved by Defendants ASHCROFT and MUELLER in 

discussions in the weeks after September 11, 2001.‟” Id. at 

1944 (alteration in original) (citations omitted). The pleading 

posited that the two officials “„each knew of, condoned, and 

willfully and maliciously agreed to subject‟ respondent to 

harsh conditions of confinement „as a matter of policy, solely 

on account of [his] religion, race, and/or national origin and 

for no legitimate penological interest.‟” Id. (alteration in 

original) (citation omitted). Finally, Ashcroft was named as 

the policy‟s “„principal architect,‟” and Mueller was 

identified as being “„instrumental in [its] adoption, 

promulgation, and implementation.‟” Id. (alteration in 

original) (citations omitted). 

Ashcroft and Mueller unsuccessfully moved to dismiss 

the complaint for failure to include sufficient allegations 

showing their own involvement in clearly established 

unconstitutional conduct. Id. The Second Circuit affirmed 

this denial, but the Supreme Court reversed. Id. at 1944-45.

Following the example it set in Twombly, the Supreme 

Court indicated that, in order to assess the sufficiency of a 

complaint, it is first necessary to consider the underlying legal 

principles and elements implicated by the complaint. Id. at 

1948. “In the limited settings where Bivens does apply, the 

implied cause of action is the „federal analog to suits brought 
25

against state officials under . . . § 1983.‟” Id. (quoting 

Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)). It was 

therefore correct, the Court noted, for Iqbal to “concede[] that 

Government officials may not be held liable for the 

unconstitutional conduct of their subordinates under a theory 

of respondeat superior.” Id. (citing, inter alia, Monell v. N.Y. 

City Dep‟t of Social Servs., 436 U.S. 658, 691 (1978); 

Dunlop v. Munroe, 7 Cranch 242, 269, 3 L. Ed. 329 (1812); 

Robertson v. Sichel, 127 U.S. 507, 515-16 (1888)). The 

Court accordingly stated that, “[b]ecause vicarious liability is 

inapplicable to Bivens and § 1983 suits, a plaintiff must plead 

that each Government-official defendant, through the 

official‟s own individual actions, has violated the 

Constitution.” Id. The Iqbal Court ultimately observed that 

“[i]n a § 1983 suit or a Bivens action—where masters do not 

answer for the torts of their servants—the term „supervisory 

liability‟ is a misnomer.” Id. at 1949. 

As did Iqbal, Plaintiffs here admit that Appellants may 

not be held personally liable for damages pursuant to a 

respondeat superior or vicarious liability theory, and the 

District Court likewise acknowledged as much in its rulings. 

It is uncontested that a government official is liable only for 

his or her own conduct and accordingly must have had some 

sort of personal involvement in the alleged unconstitutional 

conduct. The District Court, in turn, dismissed Ontaneda‟s 

equal protection claim because there was no evidence that 

Appellants possessed the discriminatory intent required by 

Iqbal, and Plaintiffs themselves do not challenge this 

dismissal on appeal. However, as noted above, we assume 

for purposes of this appeal that a federal supervisory official 

may be liable in certain circumstances even though he or she 
26

did not directly participate in the underlying unconstitutional 

conduct. 

The District Court specifically concluded that a Fourth 

Amendment claim does not require a showing of a 

discriminatory purpose and that Plaintiffs could therefore 

proceed under a “knowledge and acquiescence” theory. 

Plaintiffs acknowledge that the “terminology” used to 

describe “supervisory liability” is “often mixed.” (Appellees‟ 

Brief at 21.) They contend that a supervisor may be held 

liable in certain circumstances for a failure to train, supervise, 

and discipline subordinates. See, e.g., Chinchello v. Fenton, 

805 F.2d 126, 132-34 (3d Cir. 1986) (applying § 1983 case 

law in evaluating and rejecting Bivens claim for failure to 

train, supervise, and discipline). We accordingly stated in a § 

1983 action that “[p]ersonal involvement can be shown 

through allegations of personal direction or of actual 

knowledge and acquiescence.” Rode v. Dellarciprete, 845 

F.2d 1195, 1207 (3d Cir. 1988); see also, e.g., Santiago, 629 

F.3d at 129 (“Instead, Santiago‟s allegations appear to invoke 

a theory of liability under which „a supervisor may be 

personally liable . . . if he or she participated in violating the 

plaintiff‟s rights, directed others to violate them, or, as the 

person in charge, had knowledge of and acquiesced in his 

subordinates‟ violations.‟” (quoting A.M. ex rel. J.M.K. v. 

Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 

2004)) (footnote omitted)). “It is also possible to establish 

section 1983 supervisory liability by showing a supervisor 

tolerated past or ongoing misbehavior.” Baker v. Monroe 

Township, 50 F.3d 1186, 1191 n.3 (3d Cir. 1995) (citing 

Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 724-25 

(3d Cir. 1989)). We further indicated that a supervisor may 

be liable under § 1983 if he or she implements a policy or 
27

practice that creates an unreasonable risk of a constitutional 

violation on the part of the subordinate and the supervisor‟s 

failure to change the policy or employ corrective practices is 

a cause of this unconstitutional conduct. See, e.g., Brown v. 

Muhlenberg Township, 269 F.3d 205, 216 (3d Cir. 2001). 

Having considered the legal framework implicated by 

Iqbal‟s complaint, the Supreme Court turned to the complaint 

itself. “Under Federal Rule of Civil Procedure 8(a)(2), a 

pleading must contain a „short and plain statement of the 

claim showing that the pleader is entitled to relief.‟” Iqbal, 

129 S. Ct. at 1949. While detailed factual allegations are not 

required, the pleading must include more than “an unadorned, 

the-defendant-unlawfully-harmed-me accusation,” “„labels 

and conclusions,‟” “„a formulaic recitation of the elements of 

a cause of action,‟” or “„naked assertion[s].‟” Id. (alteration 

in original) (quoting Twombly, 550 U.S. at 555, 557). 

Accordingly, the basic principle that a court must accept all 

allegations as true is inapplicable to either legal conclusions 

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

supported by mere conclusory statements.” Id. (citing 

Twombly, 550 U.S. at 555). Instead, “a complaint must 

contain sufficient factual matter, accepted as true, to „state a 

claim to relief that is plausible on its face.‟” Id. (quoting 

Twombly, 550 U.S. at 570). “A claim has facial plausibility 

when the plaintiff pleads factual content that allows the court 

to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 

556). This “plausibility” standard does not require 

probability, but it does demand more than a sheer possibility 

that the defendant acted unlawfully. Id. Therefore, a 

complaint pleading facts that are merely consistent with 

liability is insufficient. Id.
28

Following Twombly, the Supreme Court in Iqbal

offered a multi-prong approach for determining whether a 

pleading meets the plausibility requirement. After identifying 

the elements that a plaintiff must plead to state a legally 

cognizable cause of action, see, e.g., Santiago, 629 F.3d at 

130 & n.7, a court “can choose to begin by identifying 

pleadings that, because they are no more than conclusions, are 

not entitled to the assumption of truth” (although they may 

provide a helpful framework for the complaint), Iqbal, 129 S. 

Ct. at 1950. “When there are well-pleaded factual 

allegations, a court should assume their veracity and then 

determine whether they plausibly give rise to an entitlement 

to relief.” Id.

Applying that approach, the Court determined that 

Iqbal‟s complaint “has not „nudged [his] claims‟ of invidious 

discrimination „across the line from conceivable to 

plausible.‟” Id. at 1950-51 (alteration in original) (quoting 

Twombly, 550 U.S. at 570). It explained that certain 

conclusory and formulaic allegations were not entitled to any 

assumption of truth (specifically the allegation that Ashcroft 

and Mueller knew of, condoned, and maliciously agreed to 

subject Iqbal to harsh conditions of confinement as a matter 

of policy solely on account of his religion, race, or national 

origin, and the respective characterizations of Ashcroft as the 

“„principal architect‟” of this invidious policy as well as of 

Mueller as being “„instrumental‟” in the policy‟s adoption 

and execution). Id. at 1951 (citations omitted). The Court 

then explained that the remaining factual allegations in the 

pleadings (specifically that the FBI, under the direction of 

Mueller, arrested and detained thousands of Arab Muslim 

men as part of the investigation and that the policy of holding 

detainees in highly restrictive conditions until cleared by the 
29

FBI was approved by Ashcroft and Mueller in discussions in 

the weeks following the terrorist attack) were consistent with 

Ashcroft and Mueller acting on the basis of race, religion, or 

national origin. Id. But, “given more likely explanations, 

they do not plausibly establish this purpose.” Id. The Iqbal

Court specifically noted, among other things, the specific 

circumstances that confronted the nation‟s highest-ranking 

law enforcement officers in the wake of a devastating and 

unprecedented attack. Id. at 1951-52.

The Supreme Court also expressly rejected Iqbal‟s 

theory that the pleading standards should be tempered where 

discovery purportedly was to be structured in such a way as to 

preserve the qualified immunity defense. Id. at 1953-54. 

Instead, it emphasized that the “basic thrust” of qualified 

immunity is to free officials from the concerns and burdens of 

litigation, including discovery. Id. at 1954 (citation omitted). 

“If a Government official is to devote time to his or her 

duties, and to the formulation of sound and responsible 

policies, it is counterproductive to require the substantial 

diversion that is attendant to participating in litigation and 

making informed decisions as to how it should proceed.” Id. 

The Court emphasized that such “costs are only magnified 

when Government officials are charged with responding to . . 

. „a national and international emergency unprecedented in 

the history of the American Republic.‟” Id. (citation 

omitted). Ultimately, the Supreme Court believed that the 

elusive promise of minimally intrusive discovery furnished 

“especially cold comfort” in light of the need to “give real 

content to the concept of qualified immunity for high-level 

officials who must be neither deterred nor detracted from the 

vigorous performance of their duties.” Id. at 1954. 
30

B. The Sufficiency of Plaintiffs’ Second Amended 

Complaint

Having addressed the legal elements that a plaintiff 

must plead to state a legally cognizable claim, we turn to the 

remaining steps identified by Iqbal: (1) identifying those 

allegations that, because they are no more than conclusions, 

are not entitled to any assumption of truth; and (2) then 

determining whether the well-pleaded factual allegations 

plausibly give rise to an entitlement to relief. See, e.g., Iqbal, 

129 S. Ct. at 1950; Santiago, 629 F.3d at 129-30. We 

acknowledge that Plaintiffs filed an extensive and carefully 

drafted pleading, which certainly contained a number of 

troubling allegations especially with respect to alleged 

unconstitutional behavior on the part of lower-ranking ICE 

agents. Plaintiffs are also correct that, even after Iqbal, we 

must continue to accept all factual allegations as true, 

construe the complaint in the light most favorable to the 

plaintiff, and then determine whether a reasonable inference 

may be drawn that the defendant is liable for the alleged 

misconduct. See, e.g., Fowler v. UMPC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009). We also recognize that Iqbal made it 

clear that courts must determine whether the complaint as a 

whole contains sufficient factual matter to state a facially 

plausible claim and that such a plausibility requirement “is 

not akin to a „probability requirement.‟” Iqbal, 129 S. Ct. at 

1949; see also, e.g., Matrixx Initiatives, Inc. v. Siracusano, 

131 S. Ct. 1309, 1322-25 (2011). Nevertheless, we 

ultimately conclude that, like Iqbal, Plaintiffs failed to allege 

a plausible Bivens claim against the four Appellants.

Initially, certain allegations in the Second Amended 

Complaint were conclusory in nature and merely provided, at 
31

best, a “framework” for the otherwise appropriate factual 

allegations. Iqbal, 129 S. Ct. at 1950. For instance, the broad 

allegations regarding the existence of a “culture of 

lawlessness” are accorded little if any weight in our analysis. 

(See JA532, JA561.) We further note that the relevant counts 

in the pleading contained boilerplate allegations mimicking

the purported legal standards for liability, which we do not 

assume to be true. We also must reject certain broad 

characterizations made by the District Court, which were not 

supported by either the actual factual allegations in the 

Second Amended Complaint or reasonable inferences from 

such allegations. Most significantly, the District Court went 

too far by stating that Myers and Torres “worked on these 

issues everyday.” Argueta, 2010 WL 398839, at *8. 

Turning to the non-conclusory factual allegations in 

the Second Amended Complaint, we begin with the critical 

issue of notice. Plaintiffs did reference an impressive amount 

of documentation that allegedly provided notice to Appellants 

of their subordinates‟ unconstitutional conduct. However, 

these alleged sources of notice were fatally flawed in one way 

or another. Broadly speaking, we must point out the typical 

“notice” case seems to involve a prior incident or incidents of 

misconduct by a specific employee or group of employees, 

specific notice of such misconduct to their superiors, and then 

continued instances of misconduct by the same employee or 

employees. The typical case accordingly does not involve a 

“knowledge and acquiescence” claim premised, for instance, 

on reports of subordinate misconduct in one state followed by 

misconduct by totally different subordinates in a completely 

different state. Although there were some New Jerseyspecific allegations in the Second Amended Complaint, we 

are generally confronted here with an attack on the alleged 
32

misconduct of numerous ICE agents at different raids 

executed across the country over a period of years. As 

Appellants further point out, the court cases specifically cited 

in Plaintiffs‟ pleading either did not involve individual 

capacity claims against Myers and Torres, were filed after at 

least some of the New Jersey raids specifically alleged in the 

Second Amended Complaint took place, or did not even 

involve Operation Return to Sender. All of these cases were 

also filed outside of New Jersey, and certain other alleged 

sources of notice implicated raids that took place in other 

states, especially in New Haven, Connecticut. Likewise, 

some alleged sources (like the February 2008 hearing and the 

March 2008 UN report) post-dated most of the specific New 

Jersey raids that allegedly harmed Plaintiffs themselves. In 

the end, we conclude that Plaintiffs did not plausibly allege 

that the Appellants had legally sufficient notice of the 

underlying unconstitutional conduct of their subordinates. 

 

Second, we observe that allegations specifically 

directed against Appellants themselves (unlike the allegations 

directed at the agents who actually carried out the raids) 

described conduct consistent with otherwise lawful behavior. 

See, e.g., Iqbal, 129 S. Ct. at 1950. In other words, a federal 

official specifically charged with enforcing federal 

immigration law appears to be acting lawfully when he or she 

increases arrest goals, praises a particular enforcement 

operation as a success, or characterizes a home entry and 

search as an attempt to locate someone (i.e., a fugitive alien). 

In fact, the qualified immunity doctrine exists to encourage 

vigorous and unflinching enforcement of the law. See, e.g., 

id. at 1953-54. We add that, far from adopting a facially 

unconstitutional policy or expressly ordering ICE agents to 

engage in unconstitutional home entries and searches, Myers 
33

clearly stated in her response to the National Immigration 

Forum correspondence that agents were required to obtain 

consent before entering private residences and that all 

allegations of misconduct were taken seriously and fully 

investigated (and that, among other things, similar statements 

were made by Weber in connection with his “„[w]e see it as 

trying to locate someone” comment to the press). 

We also agree with Appellants‟ assertion that Plaintiffs 

themselves did not really identify in their pleading what 

exactly Appellants should have done differently, whether 

with respect to specific training programs or other matters, 

that would have prevented the unconstitutional conduct. See, 

e.g., Beers-Capitol v. Whetzel, 256 F.3d 120, 134 (3d Cir. 

2001); Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989). 

For instance, the Inspector General‟s report, emphasized in 

the Second Amended Complaint, actually stated that all FOT 

members were required to complete a special three-week 

basic training course within two years of their assignment, 

most officers had completed the requisite training, and, in any 

case, all team members had previously undergone some form 

of basic law enforcement training (which presumably would 

have covered basic principles governing, among other things, 

the entry into a private residence without a judicial warrant). 

Far from recommending a complete training overhaul, the 

Inspector General ultimately recommended a “refresher 

course,” and ICE accepted this recommendation. (JA277.)

We also cannot overlook the fact that Appellants 

themselves occupied relatively high-ranking positions in the 

federal hierarchy. Following the example set by the District 

Court, Plaintiffs assert that Appellants cannot be compared 

with Attorney General Ashcroft, who held the highest 
34

position in the federal law enforcement hierarchy. They add 

that the Iqbal Court emphasized that both Ashcroft and 

Mueller had to make quick policy decisions to respond to an 

unprecedented national emergency, while, on the other hand, 

Appellants oversaw Operation Return to Sender over a 

number of years. We certainly acknowledge that it is crucial 

to consider context and the particular circumstances of each 

and every case. See, e.g., Iqbal, 129 S. Ct. at 1950. 

However, the context here involved, at the very least, two 

very high-ranking federal officials based in Washington D.C. 

who were charged with supervising the enforcement of 

federal immigration law throughout the country (as well as 

two other officials responsible for supervising such 

enforcement throughout an entire state). Appellants 

accordingly note that Myers and FBI Director Mueller 

reported directly to their respective agency heads (the 

Secretary of Homeland Security and the Attorney General), 

were appointed by the President and confirmed by the Senate, 

and were responsible for setting national and international 

polices. In fact, it appears uncontested that Myers and Torres 

oversaw an agency with more than 15,000 employees and a 

budget of more than $3.1 billion. 

In Rode v. Dellarciprete, 845 F.2d 1195 (3d Cir. 

1988), a civilian employee of the Pennsylvania State Police 

filed a civil rights action under § 1983 and 42 U.S.C. § 1985 

against several defendants, including Pennsylvania Governor 

Thornburgh and Attorney General Zimmerman, id. at 1197-

98. Among other things, she alleged that she was a victim of 

unlawful retaliation in the form of an unlawful work 

suspension and impermissible changes in her duties and 

working conditions. Id. Affirming the district court‟s 

dismissal of her claims against these two state officials, this 
35

Court specifically determined that she failed “to allege 

knowledge and acquiescence with the required particularity” 

as to her claim against the Governor. Id. at 1208. We 

observed that “Rode‟s assertion that the Governor had 

„responsibility for supervising‟ the other defendants is 

irrelevant.” Id. We then expressly rejected her “hypothesis” 

that the Governor had personal knowledge of the retaliation 

“directed against Hileman [Rode‟s co-plaintiff] because of 

numerous articles that appeared in newspapers throughout the 

state and through the introduction of a legislative resolution 

seeking an investigation into racially motivated retaliation 

against [Pennsylvania State Police] employees, the filing of 

grievances with the Governor‟s office of administration, and 

telephone calls and correspondence with the office of the 

Lieutenant Governor.” Id. In the end, we concluded that, 

“[i]n a large state employing many thousands of employees, a 

contrary holding would subject the Governor to potential 

liability in any case in which an aggrieved employee merely 

transmitted a complaint to the Governor‟s office of 

administration or to the Lieutenant Governor‟s office.” Id.

We add that the Ninth Circuit reached the same result 

in a recent post-Iqbal decision. In al-Kidd v. Ashcroft, 580 

F.3d 949 (9th Cir. 2009), rev‟d on other grounds, --- S. Ct. ---, 

2011 WL 2119110 (May 31, 2011), the Ninth Circuit 

expressly rejected a “conditions of confinement” claim 

against Ashcroft brought by an individual detained under the 

material witness statute following September 11 because “the 

complaint does not allege any specific facts—such as 

statements from Ashcroft or from high-ranking officials in the 

DOJ—establishing that Ashcroft had personal involvement in 

setting the conditions of confinement.” Id. at 978. The Ninth 

Circuit acknowledged that al-Kidd made several allegations 
36

regarding media reports and other sources of information 

describing the conditions of confinement, but it then 

explained that “the non-specific allegations in the complaint 

regarding Ashcroft‟s involvement fail to nudge the possible to 

the plausible, as required by Twombly.” Id. at 978-79; see 

also, e.g., Santiago, 629 F.3d at 134 (concluding that 

“allegation that Lt. Springfield was placed in charge of the 

operation, coupled with what happened during the operation, 

[failed to make it] plausible that Lt. Springfield knew of and 

acquiesced in the use of excessive force against Santiago.”).

We acknowledge that the specific circumstances 

presented in this prior case law may be distinguishable in one 

way or another. For instance, the appointed head of a federal 

agency, charged with enforcing the law and specifically 

implementing a particular enforcement operation, clearly 

possessed different responsibilities than the elected governor 

of a state. See, e.g., Atkinson, 316 F.3d at 270-71 

(distinguishing state correctional commissioner and lowerranking officials from governor and state attorney general). 

However, we cannot overlook the marked similarities 

between the allegations at issue here and the allegations 

deemed to be insufficient in Rode and al-Kidd. Furthermore, 

we again note that Myers and Torres, in particular, had 

national and even international policymaking and supervisory 

responsibilities. In the end, we believe that this prior case law 

supports our conclusion that Plaintiffs failed to meet the 

plausibility requirement.6

 

6 We further note that the Supreme Court‟s recent ruling in 

Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 

(2011), does not alter our conclusion in the current matter. 

The Court considered a motion to dismiss a securities fraud 
37

Finally, we wish to emphasize that our ruling here 

does not leave Plaintiffs without any legal remedy for the 

alleged violation of the United States Constitution. Chavez, 

Galindo, and W.C. are still free to pursue their official 

capacity claims for injunctive relief against any further 

intimidation or unlawful entry into their home. Also, we do 

not address Plaintiffs‟ individual capacity claims for damages 

against the lower-ranking ICE agents named in the Second 

Amended Complaint. See, e.g., Iqbal, 129 S. Ct. at 1952 (“It 

is important to note, however, that we express no opinion 

concerning the sufficiency of respondent‟s complaint against 

the defendants who are not before us. Respondent‟s account 

of his prison ordeal alleges serious official misconduct that 

we need not address here. Our decision is limited to the 

determination that respondent‟s complaint does not entitle 

him to relief from petitioners [Ashcroft and Mueller].”).

 

IV.

For the foregoing reasons, we will reverse the District 

Court‟s order denying the motion to dismiss the individual 

capacity claims for damages against Appellants on qualified 

immunity grounds. We will remand for further proceedings 

consistent with our opinion. 

 

claim against a pharmaceutical company for its alleged failure 

to disclose reports of adverse events associated with one of its 

drugs. Id. at 1313-25. Unlike in Iqbal, the Matrixx Court did 

not address a Bivens action against high-ranking federal 

officials. Id.