Argueta v. United States Immigration & Customs Enforcement

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

______________

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

2

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

3

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

4

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

5

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.).

6

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

7

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

8

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.

9

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,

10

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.

11

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

12

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 thirty-

one 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

13

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

14

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.)

15

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.).

16

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

17

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.

18

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

19

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

20

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,

21

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

22

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

23

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 post-

September 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

24

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

25

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

26

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.

27

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

28

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.

29

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

30

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 Jersey-

specific allegations in the Second Amended Complaint, we

are generally confronted here with an attack on the alleged

31

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

32

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

33

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

34

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

35

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 lower-

ranking 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

36

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.

37