Appendix — Ziglar v. Turkmen, 137 S. Ct. 292 (2016) (No. 15-1358)

IN THE

Supreme Court of the Ginited States

JAMES W. ZIGLAR,

Petitioner,

Vv.

IBRAHIM TURKMEN, AKHIL SACHDEVA,

AHMER IQBAL ABBASI, ANSER MEHMOOD,

BENAMAR BENATTA, AHMED KHALIFA,

SAEED HAMMOUDA, AND PURNA BAJRACHARYA,

Respondents.

ON PETITION FoR A WRIT OF CERTIORARI

To THE UNITED STATES COURT OF APPEALS

For THE SECOND CIRCUIT

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

WILLIAM ALDEN MCDANIBL, JR.

Counsel of Record’

Michelle M. McGeogh

BALLARD SPAHR LLP

300 E. Lombard Street, 18" Floor

Baltimore, Maryland 21202

410.528.5502

medanielw@ballardspabr.com

Counsel For Petitioner,

James W. Ziglar

WALSON-EPES PRINTING CO.INC - a ~ WASHINGTON. D.C. 20002

TABLE OF CONTENTS

Page

Appendix A: Opinion, United States Court

Of Appeals For The Second Circuit,

Pee ee Es 6 wR hs oe 8 fe hho pene seh eeae la

Appendix A(1): Majority Opinion........... la

Appendix A(2): Dissenting Opinion......... 83a

Appendix B: Memorandum & Order, United States

District Court For The Eastern District Of New

pO a Re re oe eee 157a

Appendix C: Order, Denying Rehearing and

Rehearing En Banc, December 11, 2015. ..... 227a

Appendix C(1): Opinion, Concurring In Denial of

En ikawceaen Goede ee bes 229a

Appendix C(2): Opinion, Dissenting From Denial

OF ey TD IND onc coc dvece cicnesicia 231la

Appendix D: Relevant Constitutional

PSS coc coe tau S cae owas ens os 241a

Appendix E: Fourth Amended Complaint,

OU CP onc cs eben eecuesaeees 244a

Appendix F: Report, “The September 11 Detainees,”

Office of the Inspector General, United States

Department of Justice, April, 2003 ......... 342a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Nos. 13-981, 13-999, 13-1002, 13-1003, 13-1662

IBRAHIM TURKMEN, AKHIL SACHDEVA, AHMER IQBAL

ABBAS!I, ANSER MEHMOOD, BENAMAR BENATTA, AHMED

KHALIFA, SAEED HAMMOUDA, PURNA BAJRACHARYA, ON

BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY

SITUATED,

Plaintiffs-Appellees-Cross-Appellants,

Vv.

DENNIS HASTY, FORMER WARDEN OF THE

METROPOLITAN DETENTION CENTER; MICHAEL ZENK,

FORMER WARDEN OF THE METROPOLITAN DETENTION

CENTER; JAMES SHERMAN, FORMER METROPOLITAN

DETENTION CENTER ASSOCIATE WARDEN FOR CUSTODY,

Defendants-Appellants,

JOHN ASHCROFT, FORMER ATTORNEY GENERAL OF THE

UNITED STATES; ROBERT MUELLER, FORMER DIRECTOR,

FEDERAL BUREAU OF INVESTIGATION; JAMES W.

ZIGLAR, FORMER COMMISSIONER, IMMIGRATION AND

NATURALIZATION SERVICE,

Defendants-Cross-Appellees,

SALVATORE LOPRESTI, FORMER METROPOLITAN

DETENTION CENTER CAPTAIN; JOSEPH CUCITI, FORMER

METROPOLITAN DETENTION CENTER LIEUTENANT,

Defendants. *

* The Clerk of the Court is directed to amend the caption as set forth

above.

(la)

2a

Appeal from the United States District Court

for the Eastern District of New York

OPINION

Argued: May 1, 2014

Decided: June 17, 2015

Before POOLER, RAGGI, and WESLEY, Circuit

Judges.

Appeal from a January 15, 2013 Memorandum and

Order of the United States District Court for the Eastern

District of New York (Gleeson, J.) granting in part and

denying in part Defendants’ motions to dismiss. Cross-

appeal from an April 10, 2013 Judgment of the United

States District Court for the Eastern District of New

York (Gleeson, J.), which was entered pursuant to Rule

54(b) of the Federal Rules of Civil Procedure on April 11,

2013, granting certain Defendants’ motions to dismiss.

We AFFIRM in part and REVERSE in part. Judge

Raggi concurs in part in the judgment and dissents in

part in a separate opinion.

POOLER and WESLEY, Circuit Judges.

On September 11, 2001, “19 Arab Muslim hijackers

who counted themselves members in good standing of al

Qaeda” hijacked four airplanes and killed over 3,000 peo-

ple on American soil. Ashcroft v. Iqbal (/qbal), 556 U.S.

662, 682 (2009). This case raises a difficult and delicate

3a

set of legal issues concerning individuals who were

caught up in the post-9/11 investigation even though they

were unquestionably never involved in terrorist activity.

Plaintiffs are eight male, “out-of-status” aliens’ who were

arrested on immigration charges and detained following

the 9/11 attacks. Plaintiffs were held at the Metropolitan

Detention Center (the “MDC”) in Brooklyn, New York,

or the Passaic County Jail (“Passaic”) in Paterson, New

Jersey; their individual detentions generally ranged from

approximately three to eight months.

The operative complaint, a putative class action, as-

serts various claims against former Attorney General

John Ashcroft; former Director of the Federal Bureau of

Investigation (the “FBI”) Robert Mueller; former Com-

missioner of the Immigration and Naturalization Service

(the “INS”) James Ziglar; former MDC Warden Dennis

Hasty; former MDC Warden Michael Zenk; and former

MDC Associate Warden James Sherman.’ All claims

arise out of allegedly discriminatory and punitive treat-

ment Plaintiffs suffered while confined at the MDC or

Passaic.

' We use the term “out-of-status” alien to mean one who has either

(1) entered the United States illegally and is deportable if appre-

hended, or (2) entered the United States legally but who has fallen

“out of status” by violating the rules or guidelines for his nonimmi-

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

is deportable.

* Wor ease of reference, we refer to Ashcroft, Mueller, and Ziglar col-

lectively as the “Department of Justice (‘DOJ’) Defendants,” and

Hasty, Sherman, and Zenk collectively as the “MDC Defendants.”

The operative complaint also alleges claims against MDC officials

Joseph Cuciti and Salvatore Lopresti. Cuciti did not appeal the dis-

trict court’s decision, and Lopresti filed a notice of appeal but did not

timely pay the filing fee or file a brief. Lopresti’s appeal was dis-

missed pursuant to Federal Rule of Appellate Procedure 31(c).

Thus, we do not address the claims against Cuciti and Lopresti.

4a

BACKGROUND

I. PROCEDURAL HISTORY*

Plaintiffs initiated this action over thirteen years ago

on April 17, 2002. Over the following two and one-half

years, Plaintiffs amended their complaint three times. In

June 2006, following a series of motions to dismiss, the

district court dismissed Plaintiffs’ unlawful-length-of-

detention claims but permitted to proceed, inter alia, the

substantive due process and equal protection claims chal-

lenging the conditions of confinement at the MDC. See

Turkmen v. Ashcroft (Turkmen I), No. 02 CV 2307(JG),

2006 WL 1662663, at *33-36, 40-41 (E.D.N.Y. June 14,

2006), aff’d in part, vacated in part, Turkmen v. Ashcroft

(Turkmen II), 589 F.3d 542 (2d Cir. 2009) (per curiam),

remanded to Turkmen III, 915 F. Supp. 2d at 314. Plain-

tiffs and Defendants appealed various aspects of that rul-

ing.

Two significant events occurred while the appeal was

pending. First, six of the original eight named Plaintiffs

at that time withdrew or settled their claims against the

government. See Turkmen I, 589 F.3d at 544 n.1, 545.

This left only Ibrahim Turkmen and Akhil Sachdeva,

both of whom were detained at Passaic, as opposed to the

MDC. Second, the Supreme Court issued /qbal, 556 U.S.

at 662, which altered the pleading regime governing

Plaintiffs’ claims. In light of these events and the re-

maining Plaintiffs’ stated desire to replead claims unique

to the settling Plaintiffs, this Court affirmed the dismis-

sal of the length of detention claims but vacated and re-

manded with respect to the conditions of confinement

claims. See Turkmen I1, 589 F.3d at 546-47, 549-50.

* For a more comprehensive review of this case’s procedural history,

see Turkmen v. Ashcroft (Turkmen ITT), 915 F. Supp. 2d 314, 331-38

(E.D.N.Y. 2013).

5a

On remand, the district court permitted Plaintiffs to

amend their complaint and granted leave for six addi-

tional Plaintiffs, all of whom had been held at the MDC,

to intervene. The eight current named Plaintiffs are of

Middle Eastern, North African, or South Asian origin; six

of them are Muslim, one is Hindu, and one is Buddhist.

The Fourth Amended Complaint (the “Complaint”), the

operative complaint in this case, restates Plaintiffs’ puta-

tive class claims on behalf of the “9/11 detainees,” a class

of similarly situated non-citizens who are Arab or Mus-

lim, or were perceived by Defendants as Arab or Muslim,

and were arrested and detained in response to the 9/11

attacks."

The Complaint dramatically winnowed the relevant

claims and defendants; it alleges seven claims against

eight defendants. The first six claims, all brought pursu-

ant to Bivens v. Sia Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), are: (1) a condi-

tions of confinement claim under the Due Process Clause;

(2) an equal protection claim alleging that Defendants

subjected Plaintiffs to the challenged conditions because

of their, or their perceived, race, religion, ethnicity,

and/or national origin; (3) a claim arising under the Free

Exercise Clause; (4) and (5) two claims generally alleging

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

Fourth and Fifth Amendments alleging unreasonable

and punitive strip searches. The seventh and final claim

alleges a conspiracy under 42 U.S:C. § 1985(3). The DOJ

‘ Benamar Benatta was originally detained by Canadian authorities

on September 5, 2001, after crossing the Canadian border with false

documentation. Following the September 11 attacks, Benatta was

transported back to the United States and detained in the challenged

conditions of confinement and pursuant to the post-9/11 investiga-

tion; therefore, we call him a “9/11 detainee.”

6a

and MDC Defendants moved to dismiss the Complaint

for failure to state a claim, on qualified immunity

grounds, and, in some instances, based on a theory that

Bivens relief did not extend to the claim at issue.

If. THE OIG REPORTS

Plaintiffs supplemented the factual allegations in their

amended complaints with information gleaned from two

reports by the Office of the Inspector General of the

United States Department of Justice (the “OIG re-

ports”) that documented the federal law enforcement re-

sponse to 9/11 and conditions at the MDC and Passaic.

The OIG reports, which the Complaint “incorporate|s|

by reference except where contradicted by the allega-

tions of [the Complaint|,” Compl. 13 n.1, see also id. 15

n.2, play a significant role in this case.’ Primarily, the

* There are two OIG reports. ‘The first OIG report, published in

June 2003, covers multiple aspects of law enforcement’s response to

9/11. See U.S. Dep’t of Justice, Office of the Inspector General, The

September 11 Detainees: A Review of the Treatment of Aliens Held

on Immigration Charges in Connection with the Investigation of the

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

http://www justice.gov/oig/special/0306/full.pdf. The second OIG re-

port, published in December 2003, focuses on abuses at the MDC.

See U.S. Dep’t of Justice, Office of the Inspector General, Supple-

mental Report on September 11 Detainees’ Allegations of Abuse at

the Metropolitan Detention Center in Brooklyn, New York (Dee.

2003) (the “Supplemental OIG Report”), available at

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

* Various Defendants challenge the district court’s decision to con-

sider the OIG reports to the extent that they are not contradicted by

the Complaint. Defendants are correct that a complaint “include{s]

any written instrument attached to it as an exhibit or any statements

or documents incorporated in it by reference.” Cortec Indus., Ine. v.

Sam Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991); accord DiFolco v.

MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). But their ob-

jection misses the point. The district court accurately explained that

at the pleading stage, although we must. consider the words on the

7a

OIG reports provide invaluable context for the unprece-

dented challenges following 9/11 and the various strate-

gies federal agencies employed to confront these chal-

lenges. The reports help orient our analysis of the Com-

plaint.

IL. PLAINTIFFS’ ALLEGATIONS’

In the aftermath of the 9/11 attacks, the FBI and oth-

er agencies within the DOJ immediately initiated an im-

mense investigation aimed at identifying the 9/11 perpe-

trators and preventing any further attacks. See OIG Re-

port at 1, 11-12. PENTTBOM, the Pentagon/Twin Tow-

ers Bombings investigation, was initially run out of the

FBI’s field offices, but shortly thereafter, Mueller or-

dered that management of the investigation be switched

to the 'BI’s Strategic Information and Operations Cen-

ter (the “SIOC”) at FBI Headquarters in Washington,

D.C. Mueller personally directed PENTTBOM from the

SIOC and remained in daily contact with FBI field of-

fices.

In conjunction with PENTTBOM, the Deputy Attor-

ney General's Office (the “DAG’s Office”) established the

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

make particular findings), we need not consider the truth of those

words to the extent disputed by Plaintiffs. See Turkmen 1/1, 915 F.

Supp. 2d at 342 n.14 (citing DiFolco, 622 F.3d at 111). Even were we

to view the OIG reports as fully incorporated, reliance on any asser-

tion of fact requires a credibility assessment that we are fundament-

ally unsuited to undertake at the Rule 12(b)(6) stage. And although

the OIG reports cannot determinatively prove or disprove Plaintiffs’

allegations, they remain relevant to our analysis because they sup-

plement our understanding of the law enforcement response to 9/11.

"The allegations set forth herein are drawn from the Complaint and

those portions of the OIG reports incorporated by reference. See

supra note 6. We presume the veracity of Plaintiffs’ well-pleaded al-

legations. Iqbal, 556 U.S. at 679.

Sa

SLOC Working Group to coordinate “efforts among the

various components within the |DOJ]| that had an investi-

gative interest in|,] or responsibility for|,] the September

11 detainees.” /d. at 15... The SIOC Working Group in-

cluded representatives from, among other agencies, the

FBI, the INS, and the DAG’s Office. This group met dai-

ly—if not multiple times in a single day—in the months

following 9/11; its duties included “coordinat|ing| infor-

mation and evidence sharing among the FBI, INS, and

U.S. Attorneys’ offices” and “ensur[ing]| that aliens de-

tained as part of the PENTTBOM investigation would

not be released until they were cleared by the FBI of in-

volvement with the September 11 attacks or terrorism in

general.” /d.

Given that the 9/11 hijackers were all foreign nation-

als, the DOJ response carried a major immigration law

component. See zd. at 12. Ashcroft and Mueller devel-

oped “a policy whereby any Muslim or Arab man encoun-

tered during the investigation of a tip received in the 9/11

terrorism investigation ... and discovered to be a

non-citizen who had violated the terms of his visa, was

arrested.” Compl. 11; see also id. 1939-49. Ashcroft also

created the related “hold-until-cleared” policy, which

mandated that individuals arrested in the wake of 9/11

not be released from “custody until | BI Headquarters |

affirmatively cleared them of terrorist ties.” /d. 12; see

also OIG Report at 38-39.

Within a week of 9/11, the FBI had received approxi-

mately 96,000 tips from civilians across the country.

These tips varied significantly in quality and reliability.’

* The SIOC Working Group acquired this name because its initial

meetings occurred at the FBI’s SIOC.

” For instance, Turkmen came to the FBI's attention when his land-

lord called the FBI's 9/11 hotline and reported “that she rented an

9a

“Mueller [nonetheless] ordered that every one of these

tips be investigated, even if they were implausible on

their face.” Compl. 140. Ultimately, 762 detainees were

placed on the INS Custody List (the “INS List”) that

then made them subject to Asheroft’s hold-until-cleared

policy.

In the months following 9/11, the DOJ Defendants

“received detailed daily reports of the arrests and deten-

tions.” Jd. 947. Ashcroft and Mueller also “met regular-

ly with a small group of government officials in Washing-

ton, D.C., and mapped out ways to exert maximum pres-

sure on the individuals arrested in connection with the

terrorism investigation.” /d. 161." This small group

“discussed and decided upon a strategy to restrict the

9/11 detainees’ ability to contact the outside world and

apartment in her home to several Middle Eastern men, and she

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

didn’t call.’"” Compl. 1251. “The FBI knew that her only basis for

suspecting these men was that they were Middle Fastern; indeed,

she reported that they were good tenants, and paid their rent on

time.” Jd. Another alien was arrested after the FBI received a tip

that stated that the small grocery store where he worked was over-

staffed, thus arousing the tipster’s suspicions about the “Middle

Eastern men” that worked there. OLG Report at 17.

" It is unclear whether this “small group” refers to the SLOC Work-

ing Group or a distinct group involving Ashcroft, Mueller, and other

senior Washington, D.C., officials. One possibility is that Plaintiffs

are referring to the small group that consisted of Asheroft, Mueller,

Michael Chertoff, who was then Assistant Attorney General of the

Criminal Division, and the Deputy Attorney General. See OIG Re-

port at 13. According to Chertoff, this group discussed the DOJ's

post-9/11 law enforcement strategy and policies. Given the makeup

of this group and the SLOC Working Group, it is reasonable to infer

that information flowed between them; for instance, Chertoff’s depu-

ty, Alice Fisher, was placed in charge of immigration issues for the

Criminal Division and personally established the SIOC Working

Group.

10a

delay their immigration hearings. The group also decid-

ed to spread the word among law enforcement personne!

that the 9/11 detainees were suspected terrorists] | ...

and that they needed to be encouraged in any way possi-

ble to cooperate.” /d.

Plaintiffs, with the exception of Turkmen and Sachde-

va, were held at the MDC. Under MDC confinement po!l-

icy, the 9/11 detainees placed in the MDC were held in

the MDC’s Administrative Maximum Special Housing

Unit (the “ADMAX SHU”)—“a particularly restrictive

type of SHU not found in most [Bureau of Prisons

(‘BOP’)} facilities because the normal SHU is usually suf-

ficient for correcting inmate misbehavior and addressing

security concerns.” /d. 176. The confinement policy was

created by the MDC Defendants “in consultation with

the FBL.” /d. 165.

‘onditions in the ADMAX SHU were severe and be

gan to receive media attention soon after detentions be

gan. See OIG Report at 2, 5. Detainees were: “placed in

tiny cells for over 23 hours a day,” Compl. 45;

“strip-searched every time they were removed from or

returned to their cells], ... even when they had no con-

ceivable opportunity to obtain contraband,” id. 9112;

provided with “meager and barely edible” food, id. 4128;

denied sleep by “bright lights” that were left on in their

cells for 24 hours a day, id. 1119, and, “[o|n some occa-

sions, correctional officers walked by every 20 minutes

throughout the night, kicked the doors to wake up the de-

tainees, and yelled” highly degrading and offensive com-

ments, 7d. 1120; constructively denied recreation and ex-

posed to the elements, see id. 19 122-23; “denied access to

basic hygiene items like toilet paper, soap, towels, tooth-

paste, [and] eating utensils,” id. 1130; and prohibited

from moving around the unit, using the telephone freely,

lla

using the commissary, or accessing MDC handbooks,

which explained how to file complaints about mistreat-

ment, see id. 1976, 83, 129, 140.

MDC staff also subjected the 9/11 detainees to fre-

quent physical and verbal abuse. The abuse included

slamming the 9/11 detainees into walls; bending or twist-

ing their arms, hands, wrists, and fingers; lifting them off

the ground by their arms; pulling on their arms and

handcuffs; stepping on their leg restraints; restraining

them with handcuffs and/or shackles even while in their

cells; and handling them in other rough and inappropri-

ate ways. See id. 1105; see also Supplemental OIG Re-

port at 8-28. MDC staff also referred to the 9/11 detain-

ees as “‘terrorists,’ and other offensive names; threat-

enjled| them with violence; curs|ed] at them; insult|ed]

their religion; and ma|de| humiliating sexual comments

during strip-searches.” Compl. 1109. Specifically, Plain-

tiffs and putative class members at the MDC were re-

ferred to by staff as “camells],” “fucking Muslims,” and

“Arabic asshole[s],” id. 19 110, 147, 2i8.

The MDC Plaintiffs did not receive copies of the Ko-

ran for weeks or months after requesting them, and one

Plaintiff never received a copy, “pursuant to a written

MDC policy ... that prohibited the 9/11 detainees from

keeping anything, including a Koran, in their cell[s].” /d.

1132. The MDC Plaintiffs were also “denied the Halal

food required by their Muslim faith.” /d. 9133. And

“MDC staff frequently interrupted Plaintiffs’ and class

members’ prayers,” including “by banging on cell doors,”

yelling derogatory comments, and mocking the detainees

while they prayed. /d. 1136.

The named MDC Plaintiffs’ individual experiences—

several of which are highlighted below—add further tex-

12a

ture to their collective allegations concerning the arrest

and confinement of the 9/11 detainees.

A. Anser Mehmood

Mehmood, a citizen of Pakistan and devout Muslim,

entered the United States on a business visa in 1989 with

his wife, Uzma, and their three children. After his visa

expired, Mehmood remained in the country and started a

trucking business that provided enough earnings to pur-

chase a home in New Jersey and to send funds to his

family in Pakistan. In 2000, while living in New Jersey,

he and Uzma had their fourth child. In May 2001, Uz-

ma’s brother—a United States citizen—submitted an

immigration petition for the entire family.

On the morning of October 3, 2001, Mehmood was

asleep with Uzma and their one-year-old son when FBI

and INS agents knocked on his door. The agents

searched Mehmood’s home and asked whether he “was

involved with a jihad.” Jd. 9 157. Mehmood admitted

that he had overstayed his visa. The FBI informed

Mehmood that they were not interested in him; they had

come to arrest his wife Uzma, whose name the FBI had

encountered when investigating Plaintiff Anmer Abbasi,

her brother. Mehmood convinced the FBI to arrest him

instead of Uzma because their son was still breastfeed-

ing. “The Agent told Mehmood that they had no choice

but to arrest one of the parents, but that Mehmood faced

a minor immigration violation only, and he would be out

on bail within days.” /d. 9159.

Upon his arrival at the MDC, Mehmood “was dragged

from the van by several large correctional officers, who

threw him into several walls on his way into the facility.”

Id. 1162. “His left hand was broken during this incident”

and “|t|he guards threatened to kill him if he asked any

questions.” Jd. His experience in the ADMAX SHU

13a

tracked that of other 9/11 detainees. For instance,

“[w|henever Mehmood was removed from his cell, he was

placed in handcuffs, chains, and shackles. Four or more

MDC staff members typically escorted him to his desti-

nation, frequently inflicting unnecessary pain along the

way, for example, by banging him into the wall, dragging

him, carrying him, and stepping on his shackles and

pushing his face into the wall.” Jd. 9166. Neither the

FBI nor INS interviewed Mehmood following his arrest.

Mehmood was not released from the ADMAX SHU until

February 6, 2002.

B. Ahmed Khalifa

Khalifa, who had completed five years toward a medi-

cal degree at the University of Alexandria in Egypt,

came to the United States on a student visa in July 2001.

He came to the FBI’s attention after the FBI received a

tip that “several Arabs who lived at Khalifa’s address

were renting a post-office box, and possibly sending out

large quantities of money.” /d. 1195. On September 30,

2001, F BI, INS, and officers from the New York City Po-

lice Department came to the apartment Khalifa shared

with several Egyptian friends. The officers searched his

wallet and apparently became “very interested in a list of

phone numbers of friends in Egypt.” Jd. 9196. After

searching the apartment, the agents asked Khalifa for his

passport and “if he had anything to do with September

11.” Id. 9197. One FBI agent told Khalifa that they

were only interested in three of his roommates, but an-

other agent said they also needed Khalifa, whom they ar-

rested for “working without authorization.” /d.

On October 1, 2001, after briefly stopping at a local

INS detention facility to complete paperwork, Khalifa

and his roommates were transported to the MDC. When

he arrived at the MDC, Khalifa “was slammed into the

l4a

wall, pushed and kicked by MDC officers and placed into

a wet cell, with a mattress on the floor.” /d.%201. “[ His]

wrists were cut and bruised from his handcuffs, and he

was worried about other detainees, whom he heard gasp-

ing and moaning through the walls of his cell.” Jd.

FBI and INS agents interviewed Khalifa on October 7,

2001. One of the agents apologized to Khalifa after notic-

ing the bruises on his wrists. When Khalifa stated that

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

because he was Muslim.” /d. 1202. In notes from the in-

terview, the agents did not question Khalifa’s credibility,

and noted no suspicion of ties to terrorism or interest in

him in connection with PENTTBOM.

Following the interview, MDC guards strip searched

Khalifa and “laughed when they made him bend over and

spread his buttocks.” /d. 1203. Khalifa complains of the

conditions associated with detention in the ADMAX

SHU, including arbitrary and abusive strip searches,

sleep deprivation, constructive denial of recreational ac-

tivities and hygiene items, and deprivation of food and

medical attention.

By November 5, 2001, the New York FBI field office

affirmatively cleared Khalifa of any ties to terrorism and

sent his name to F'BI Headquarters for final clearance.

Khalifa was not officially cleared until December 19,

2001. He remained confined in the ADMAX SHU until

mid-January 2002.

C. Purna Raj Bajracharya

Bajracharya is neither Muslim nor Arab. He is a

Buddhist and native of Nepal who entered the United

States on a three-month business visa in 1996. After

overstaying his visa, Bajracharya remained in Queens,

New York, for five years, working various odd jobs to

send money home to his wife and sons in Nepal. Having

l5a

planned to return home in the fall or winter of 2001, Ba-

jracharya used a video camera to capture the streets he

had come to know in New York. He came to the FBI's

attention on October 25, 2001, when a Queens County

District Attorney’s Office employee “observed an ‘|A|rab

male’ videotaping outside a Queens| | office building that

contained the Queens County District Attorney[’s] Office

and a New York FBI office.” Jd. 1230. When ap-

proached by investigators from the District Attorney’s

Office, Bajracharya tried to explain that he was a tourist.

The investigators took him inside the building and inter-

rogated him for five hours. FBI and INS agents arrived

at some point during the interrogation. Bajracharya

subsequently took the agents to his apartment; provided

them with his identification documents, which established

his country of origin; and admitted to overstaying his vi-

sa.

Apparently due to the videotaping, Bajracharya was

designated as being of “special interest” to the FBI and

on October 27, 2001, he was transported to the MDC. /d.

19 233-34. On October 30, 2001, the FBI agent assigned

to Bajracharya’s case, along with other law enforcement

personnel, interviewed him with the aid of an interpreter.

During the interview, “Bajracharya was asked whether

he was Muslim or knew any Muslims.” /d. 1235.

Bajracharya explained that he was not Muslim and knew

no Muslims. The FBI agent’s notes from the interview

do not question Bajracharya’s credibility or express any

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

agent affirmatively cleared Bajracharya of any link to

terrorism. By November 5, 2001, the New York FBI

field office completed its investigation and forwarded

Bajracharya’s case to FBI Headquarters for final

clearance. Documents at FBI Headquarters note that

16a

the FBI had no interest in Bajracharya by mid-

November 2001. Nonetheless, he was not released from

the ADMAX SHU until January 13, 2002. The FBI

agent assigned to Bajracharya’s case did not understand

why Bajracharya remained in the ADMAX SHU

throughout this period; the agent eventually called the

Legal Aid Society and advised an attorney that

Bajracharya needed legal representation.

Bajracharya, who is 53” and weighed about 130

pounds at the time of his arrest, complains of the same

conditions common to the other MDC Plaintiffs. For in-

stance, he could not sleep due to the light in his cell, and

when he was removed from his cell, he would be placed in

handcuffs, chains, and shackles and escorted by four or

more MDC staff members. Bajracharya became so

traumatized by his experience in the ADMAX SHU that

he wept constantly. When an attorney requested that the

MDC transfer Bajracharya to general population, an

MDC “doctor responded that Bajracharya was crying too

much, and would cause a riot.” /d. 1241.

IV. THE NEW YORK LIsT AND THE “OF INTEREST” DEs-

IGNATION

As originally articulated by Ashcroft, following 9/11,

the DOJ sought to prevent future terrorism by arresting

and detaining those people who “have been identified as

persons who participate in, or lend support to, terrorist

activities.” OIG Report at 12 (internal quotation marks

omitted). To that end, Michael Pearson, who was then

INS Executive Associate Commissioner for Field Opera-

tions, issued a series of Operational Orders, which ad-

dressed the responsibilities of INS agents operating with

the FBI to investigate leads on illegal aliens. A Septem-

ber 22, 2001 order instructed agents to “exercise sound

judgment” and to limit arrests to those aliens in whom

17a

the F'BI had an “interest” and discouraged arrest in cas-

es that were “clearly of no interest in furthering the in-

vestigation of the terrorist attacks of September 11th.”

Id. at 45 (internal quotation marks omitted). The “of in-

terest” designation by an FBI agent had significant im-

plications for a detainee. “Of interest” detainees were

placed on the INS List, subject to the hold-until-cleared

policy, and required FBI clearance of any connection to

terrorism before they could be released or removed from

the United States. Detainees who were not designated

“of interest” to the FBI’s PENTTBOM investigation

were not placed on the INS List, did not require clear-

ance by the FBI, and could be processed according to

normal INS procedures. /d. at 40.

The arrest and detention mandate was not uniformly

implemented throughout the country. Specifically, the

New York FBI investigated all PENTTBOM leads with-

out vetting the initial tip and designated as “of interest”

“anyone picked up on a PENTTBOM lead ... regardless

of the strength of the evidence or the origin of the lead.”

/d. at 41; see also Compl. 1943-45. For instance, days af-

ter 9/11, New York City police stopped three Middle

Eastern men in Manhattan on a traffic violation and

found plans to a public school in the car. The next day,

their employer confirmed that the men had the plans be-

cause they were performing construction work on the

school. Nonetheless, the men were arrested and de-

tained. See OIG Report at 42. In another instance, a

Middle Kastern man was arrested for illegally crossing

into the United States from Canada over a week before

9/11. After the attacks, the man was placed on New

York’s “‘special interest’ list even though a document in

his file, dated September 26, 2001, stated that FBI New

18a

York had no knowledge of the basis for his detention.”

Id. at 64 (internal quotation marks omitted).

In many cases, the New York FBI did not even at-

tempt to determine whether the alien was linked to ter-

rorism, see id. at 14, 16, 41-42, 47, and it “never labeled a

detainee ‘no interest’ until after the clearance process

was complete,” id. at 18 (emphasis added). Thus, aliens

encountered and arrested pursuant to a PENTTBOM

lead in New York were designated “of interest” (or spe-

cial interest) and held until the local field office confirmed

they had no ties to terrorism. /d. at 14; see also id. at

53." The result was that the MDC Plaintiffs and others

similarly situated in New York were held at the MDC

ADMAX SHU as if they met the national “of interest”

designation. These practices—specifically the absolute

lack of triage—appear to have been unique to New York.

See id. at 47, 56.”

At some point in October 2001, INS representatives to

the SIOC Working Group learned that the New York

FBI was maintaining a separate list (the “New York

List”) of detainees who had not been included in the na-

tional INS List. One explanation for maintaining a sepa-

rate New York List was that the New York FBI could

not determine if the detainees had any connection with

terrorist activity. /d. at 54.

'' The OIG Report indicates that 491 of the 762 detainees were ar-

rested in New York. OIG Report at 21-22. However, the OIG Re-

port does not identify how many New York arrests were the result of

the New York F'BI’s efforts.

" The OIG Report posits that the New York response differed from

the rest of the nation, at least in part, as a result of the New York

FBI and U.S. Attorney’s Office’s long tradition of independence from

their headquarters in Washington, D.C. See OIG Report at 54.

19a

After INS Headquarters learned of the separate New

York List, small groups of senior officials from the DAG’s

Office, the FBI, and the INS convened on at least two oc-

casions in October and November 2001 to suggest how to

deal with the two separate lists of detainees. In dis-

cussing how to address the New York List, “officials at

the INS, FBI, and [DOJ] raised concerns about, among

other things, whether the aliens |on the New York List]

had any nexus to terrorism.” /d. at 53. Nonetheless, this

list was merged with the INS List due to the concern

that absent further investigation, “the FBI could unwit-

tingly permit a dangerous individual to leave the United

States.” /d. The decision to merge the lists ensured that

some of the individuals on the New York List would re-

main detained in the challenged conditions of confine-

ment as if there were some suspicion that those individu-

als were tied to terrorism, even though no such suspicion

existed.

V. THE ISSUES ON APPEAL

In a January 15, 2013 Memorandum and Order, the

district court granted in part and denied in part Defend-

ants’ motions to dismiss the Complaint. The district

court dismissed all claims against the DOJ Defendants.

As to the MDC Defendants, the district court denied

their motions to dismiss Plaintiffs’ substantive due pro-

cess conditions of confinement claim (Claim 1); equal pro-

tection conditions of confinement claim (Claim 2); free

exercise claim (Claim 3); unreasonable strip search claim

(Claim 6); and conspiracy claim under 42 U.S.C. § 1985(3)

(Claim 7). See Turkmen [11,915 F. Supp. 2d at 324. The

MDC Defendants appealed, and Plaintiffs cross-appealed

the dismissal of the claims against the DOJ Defendants

20a

based on a judgment that was entered pursuant to Rule

54(b) of the Federal Rules of Civil Procedure.”

DISCUSSION"

I. PLEADING STANDARD

To satisfy /gbal’s plausibility standard, Plaintiffs must

“plead| | factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” 556 U.S. at 678. Although plausibil-

ity is not a “probability requirement,” Plaintiffs must al-

lege facts that permit “more than a sheer possibility that

a defendant has acted unlawfully.” /d. (internal quota-

tion marks omitted). Factual allegations that are “mere-

ly consistent with” unlawful conduct do not create a rea-

sonable inference of liability. /d.

Moreover, “|t]hreadbare recitals of the elements of a

cause of action, supported by mere conclusory state-

ments, do not suffice.” Jd. Well-pleaded factual allega-

tions, in contrast, should be presumed true, and we must

determine “whether they plausibly give rise to an entitle-

ment to relief.” /d. at 679. Ultimately, every plausibility

determination is a “context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense.” /d.

With the exception of the Section 1985 conspiracy

claim, all of Plaintiffs’ claims allege constitutional viola-

tions based on injuries first recognized by the Supreme

Court in Bivens, 403 U.S. at 388. During the course of

this litigation, the Supreme Court made it clear in /qbal

Plaintiffs have not appealed the district court's dismissal of their

interference with counsel claims (Claims 4 and 5).

' We review the district court’s determination of Defendants’ Rule

12(b)(6) motions to dismiss de novo. See Papelino v. Albany Coll. of

Pharmacy of Union Univ., 633 F.3d 81, 88 (2d Cir. 2011).

2la

that a federal tortfeasor’s Bivens liability cannot be

premised on vicarious liability. 556 U.S. at 676. Thus,

Plaintiffs must plausibly plead that each Defendant,

“through the official’s own individual actions,” violated

Plaintiffs’ constitutional rights. /d. In other words,

Bivens relief is available only against federal officials

who are personally liable for the alleged constitutional

tort. /d. at 676-77. /qbal precludes relying on a supervi-

sor’s mere knowledge of a subordinate’s mental state

(i.e., discriminatory or punitive intent) to infer that the

supervisor shared that intent. /d. at 677. Knowing that a

subordinate engaged in a rogue discriminatory or puni-

tive act is not enough. But that is not to say that where

the supervisor condones or ratifies a subordinate’s dis-

criminatory or punitive actions the supervisor is free of

Bivens’s reach. See id. at 683.

If. AVAILABILITY OF A BIVENS REMEDY FOR PLAIN-

TIFFS’ CLAIMS

Unlike the MDC Defendants, none of the DOJ De-

fendants challenge the existence of a Bivens remedy in

their briefs to this Court. While the DOJ Defendants did

raise this issue below, and are represented by able coun-

sel on appeal, they have chosen to not offer that argu-

ment now as a further defense of their victory in the dis-

trict court. However, as the reader will later discover,

our dissenting colleague makes much of this defense,

raising it as her main objection to our resolution of the

appeal. Given the MDC Defendants’ arguments, as well

as the dissent’s decision to press the issue, legitimately

noting that a district court’s judgment can be affirmed on

any ground supported by the record, Dissenting Op., post

at 7 n.4 (citing Lotes Co. v. Hon Hai Precision Indus.

Co., 753 F.3d 395, 413 (2d Cir. 2014)), we think it appro-

priate to explain our conclusion that a Bivens remedy is

22a

available for the MDC Plaintiffs’ punitive conditions of

confinement and strip search claims against both the

DOJ and the MDC Defendants.

In Bivens, 403 U.S. at 388, the Supreme Court “recog-

nized for the first time an implied private action for dam-

ages against federal officers alleged to have violated a cit-

izen’s constitutional rights.” Corr. Servs. Corp. v. Ma-

lesko, 534 U.S. 61, 66 (2001). “The purpose of Bivens is to

deter individual federal officers from committing consti-

tutional violations.” /d. at 70. Because a Bivens claim

has judicial parentage, “the Supreme Court has warned

that the Bivens remedy is an extraordinary thing that

should rarely if ever be applied in new contexts.” Arar v.

Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (en banc) (in-

ternal quotation marks omitted). Thus, a Bivens remedy

is not available for all who allege injury from a federal of-

ficer’s violation of their constitutional rights.

In Arar, we outlined a two-step process for determin-

ing whether a Bivens remedy is available. First, the

court must determine whether the underlying claims ex-

tend Bivens into a “new context.” /d. at 572. If, and only

if, the answer to this first step is yes, the court must then

consider (a) “whether there is an alternative remedial

scheme available to the plaintiff,” and, even if there is

not, (b) “whether special factors counsel hesitation in

creating a Bivens remedy.” /d. (internal quotation marks

and brackets omitted). As Arar noted, case law provides

limited guidance regarding how to determine whether a

claim presents a new context for Bivens purposes. Thus,

“Iwle construe[d] the word ‘context’ as it is commonly

used in law: to reflect a potentially recurring scenario

that has similar legal and factual components.” /d.

Determining the “context” of a claim can be tricky.

The MDC Defendants contend that the context of Plain-

234

tiffs’ claims is the nation’s “response to an unprecedented

terrorist attack.” Sherman Br. 45. The DOJ Defendants

made a similar argument before the district court in an

earlier round of this litigation. See Turkmen I, 2006 WL

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

on behalf of the DOJ Defendants, contend that Arar sup-

ports this view. But if that were the case, then why did

Arar take pains to note that the “context” of Arar’s

claims was not the nation’s continuing response to terror-

ism, but the acts of federal officials in carrying out Arar’s

extraordinary rendition? 585 F.3d at 572. We looked to

both the rights injured and the mechanism of the injury

to determine the context of Arar’s claims. In rejecting

the availability of a Bivens remedy, we focused on the

mechanism of his injury: extraordinary rendition—‘“a

distinct phenomenon in international law”’—and deter-

mined this presented a new context for Bivens-based

claims. /d. Only upon concluding that extraordinary

rendition presented a new context did we examine the

policy concerns and competing remedial measures avail-

able to Arar. In our view, setting the context of the

Givens claims here as the national response in the wake

of 9/11 conflates the two-step process dictated by this

Court in Arar. The reasons why Plaintiffs were held at

the MDC as if they were suspected of terrorism do not

present the “context” of their confinement—just as the

reason for Arar’s extraordinary rendition did not present

the context of his claim. Without doubt, 9/11 presented

unrivaled challenges and severe exigencies—but that

does not change the “context” of Plaintiffs’ claims.

“{M Jost of the rights that the Plaintiff{s] contend[ | were

violated do not vary with surrounding circumstances,

such as the right not to be subjected to needlessly harsh

conditions of confinement, the right to be free from the

use of excessive force, and the right not to be subjected

24a

to ethnic or religious discrimination. The strength of our

system of constitutional rights derives from the steadfast

protection of those rights in both normal and unusual

times.” /qbal v. Hasty (Hasty), 490 F.3d 143, 159 (2d Cir.

2007), rev’d on other grounds sub nom. /qgbal, 556 U.S.

662.

Thus, we think it plain that the MDC Plaintiffs’ condi-

tions of confinement claims are set in the following con-

text: federal detainee Plaintiffs, housed in a federal facili-

ty, allege that individual federal officers subjected them

to punitive conditions. This context takes account of both

the rights injured (here, substantive due process and

equal protection rights)" and the mechanism of injury

(punitive conditions without sufficient cause). The

claim—that individual officers violated detainees’ consti-

tutional rights by subjecting them to harsh treatment

with impermissible intent or without sufficient cause—

stands firmly within a familiar Bivens context. Both the

Supreme Court and this Circuit have recognized a Bivens

remedy for constitutional challenges to conditions of con-

finement. In Carlson v. Green, 446 U.S. 14, 17-20 (1980),

” The rights-injured component of Plaintiffs’ claims fall within a ree-

ognized Bivens context. This Circuit has presumed the availability

of a Bivens remedy for substantive due process claims in several

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

In addition, the Supreme Court has acknowledged the availability of

“a Bivens action to redress a violation of the equal protection com.

ponent of the Due Process Clause of the Fifth Amendment.” /qbad,

556 U.S. at 675 (citing Davis v. Passnuin, 442 U.S. 228 (1979)). And

while it is true that the Supreme Court has subsequently declined to

extend Davis to other employment discrimination claims, such as in

Chappell v. Wallace, 462 U.S. 296, 300-04 (1983), the Court's analysis

was focused on the special nature of the employer-employee rela-

tionship in the military—or, in other words, the mechanism of injury.

Here, where the mechanism of injury is also familiar, a Bivens rem-

edy is plainly available.

25a

the Supreme Court recognized an implied remedy for the

plaintiff’s claim alleging an EKighth Amendment violation

for prisoner mistreatment. Furthermore, in Malesko, in

refusing to extend a Bivens remedy to claims against pri-

vate corporations housing federal detainees, the Supreme

Court observed in dicta that, while no claim was available

against the private corporation, a federal prisoner would

have a remedy against federal officials for constitutional

claims. 534 U.S. at 72. “If a federal prisoner in a BOP

facility alleges a constitutional deprivation, he may bring

a Bivens claim against the offending individual officer,

subject to the defense of qualified immunity.” /d. The

Court went on to recognize that the “prisoner may not

bring a Bivens claim against the officer’s employer, the

United States, or the BOP.” /d. The MDC Plaintiffs’

claims here plainly follow Malesko’s guidance: the claims

are raised against the individual officers, both at the DOJ

and the MDC, who were responsible for subjecting the

Plaintiffs to punitive conditions of confinement.

The Second Circuit has also recognized the availability

of Bivens relief for federal prisoners housed in federal

facilities bringing claims against individual federal offi-

cers. In Thomas v. Ashcroft, 470 F.3d 491, 497 (2d Cir.

2006), this Court reversed the district court’s dismissal of

the prisoner plaintiff’s Bivens claim for violation of his

due process rights against supervisory prison officials.

See also Tellier v. Fields, 280 F.3d 69, 80-83 (2d Cir.

2000) (recognizing a Bivens remedy for a claim of depri-

vation of procedural due process brought by a federal

prisoner against federal prison officials). Furthermore,

in Hasty, where we considered claims nearly identical to

those at issue in this case, we “did not so much as hint ei-

ther that a Bivens remedy was unavailable or that its

availability would constitute an unwarranted extension of

26a

the Bivens doctrine.” Arar, 585 F.3d at 597 (Sack, J.,

dissenting) (discussing Hasty, 490 F.3d at 177-78).

Our sister circuits have also permitted Bivens claims

for unconstitutional conditions of confinement. In Cale v.

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

other grounds by Thaddeus-X v. Blatter, 175 F.3d 378

(6th Cir. 1999) (en banc), the Sixth Circuit held that “fed-

eral courts have the jurisdictional authority to entertain a

Bivens action brought by a federal prisoner, alleging vio-

lations of his right to substantive due process.” The

Third Circuit has also permitted a federal inmate to

bring a civil rights action against prison officials. See

Bistrian v. Levi, 696 F.3d 352, 372-75 (3d Cir. 2012) (as-

suming availability of a Bivens remedy for plaintiff’s

Fifth Amendment substantive due process and other

constitutional claims challenging his conditions of con-

finement).

Notwithstanding the persuasive precedent suggesting

the availability of a Bivens remedy for the MDC Plain-

tiffs’ conditions of confinement claims, the MDC Defend-

ants, and our dissenting colleague, argue that the MDC

Plaintiffs’ claims present a new Bivens context because

the Plaintiffs are illegal aliens. But because the MDC

Plaintiffs’ right to be free from punitive conditions of con-

finement is coextensive with that of a citizen, their unlaw-

ful presence in the United States at the time of the chal-

lenged confinement does not place their standard mis-

treatment claim into a new context. Indeed, the Fifth

Circuit has recognized a Bivens claim raised by a Mexi-

can national for violations of her Fourth and Fifth

Amendment rights to be free from false imprisonment

and the use of excessive force by law enforcement per-

sonnel. See Martinez-Agquero v. Gonzalez, 459 F.3d 618,

625 (5th Cir. 2006). The Ninth Circuit has also recog-

27a

nized a Bivens claim for due process violations that oc-

curred during an illegal alien plaintiff’s detention. See

Papa v. United States, 281 F.3d 1004, 1010-11 (9th Cir.

2002). Thus, we conclude that a Bivens remedy is avail-

able for the Plaintiffs’ substantive due process and equal

protection conditions of confinement claims.

Our understanding of Bivens and this Court’s decision

in Arar do not however suggest the availability of a

Bivens remedy for the Plaintiffs’ free exercise claim.

That claim—that Defendants deliberately interfered with

Plaintiffs’ religious practices by: (1) denying them timely

access to copies of the Koran; (2) denying them Halal

food; and (3) failing to stop MDC staff from interfering

with Plaintiffs’ prayers—does not fall within a familiar

Bivens context. Here, it is the right injured—Plaintiffs’

free exercise right—and not the mechanism of injury

that places Plaintiffs’ claims in a new Bivens context. In-

deed, the Supreme Court has “not found an implied dam-

ages remedy under the Free Exercise Clause” and has

“declined to extend Bivens to a claim sounding in the

First Amendment.” /qbal, 556 U.S. at 675 (citing Bush v.

Lucas, 462 U.S. 367 (1983)). Accordingly, we agree with

the MDC Defendants that Plaintiffs’ free exercise claim

should have been dismissed.

But the MDC Plaintiffs’ claim that they were subject-

ed to unlawful strip searches falls within an established

Bivens context: federal detainee plaintiffs, housed in a

We note that the Ninth Circuit has declined to provide illegal al-

iens with an implied Bivens remedy for unlawful detention during

deportation proceedings. Mirmehdi v. United States, 689 F.3d 975,

981-83 (9th Cir. 2012). Of course, that decision is plainly inapposite

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

were detained, but rather the conditions in which they were de-

tained.

28a

federal facility, allege that individual federal officers sub-

jected them to unreasonable searches in violation of the

Fourth Amendment. The MDC Defendants fail to per-

suasively explain why recognizing the MDC Plaintiffs’

unlawful strip search claim would extend Bivens to a new

context. Indeed, the right violated certainly falls within a

recognized Bivens context: the Fourth Amendment is at

the core of the Bivens jurisprudence, as Bivens itself

concerned a Fourth Amendment claim. In Bivens, the

plaintiff brought a Fourth Amendment claim for the de-

fendants’ use of unreasonable force without probable

cause, resulting in the plaintiff’s unlawful arrest. 403

U.S. at 389-90; see also Groh v. Ramirez, 540 U.S. 551,

555 (2004) (recognizing the availability of a Bivens reme-

dy for a Fourth Amendment claim of an unreasonable

search, as a result of a facially invalid warrant). This

Circuit has also permitted Bivens relief for Fourth

Amendment claims involving unreasonable searches.

See, e.g., Castro v. United States, 34 F.3d 106, 107 (2d

Cir. 1994). And the mechanism of the violation—here, an

unreasonable search performed by a prison official—has

also been recognized by this Circuit. Indeed, in Arar, we

stated that “lijn the small number of contexts in which

courts have implied a Bivens remedy, it has often been

easy to identify both the line between constitutional and

unconstitutional conduct, and the alternative course

which officers should have pursued .... [T]he immigra-

tion officer who subjected an alien to multiple strip

searches without cause should have left the alien in his

clothes.” 585 F.3d at 580; see also Hasty, 490 F.3d at

170-73 (assuming the existence of a Bivens remedy to

challenge strip searches under the Fourth Amendment).

Accordingly, we conclude that a Bivens remedy is

available for Plaintiffs’ conditions of confinement claims,

29a

under both the Due Process and Equal Protection Claus-

es of the Fifth Amendment, and Fourth Amendment un-

reasonable and punitive strip searches claim.'’ However,

Plaintiffs’ free exercise claim would require extending

Bivens to a new context, a move we decline to make ab-

sent guidance from the Supreme Court.

Ill. CLAIM 1: SUBSTANTIVE DUE PROCESS CONDITIONS

OF CONFINEMENT

The MDC Plaintiffs allege that the harsh conditions of

confinement in the MDC violated their Fifth Amendment

substantive due process rights and that all Defendants

are liable for this harm.” Plaintiffs present distinct theo-

ries of liability as to the DOJ and MDC Defendants.

A. Applicable Legal Standard

The Fifth Amendment’s Due Process Clause forbids

subjecting pretrial detainees to punitive restrictions or

conditions. See Bell v. Wolfish (Wolfish), 441 U.S. 520,

535 & n.16 (1979). Plaintiffs must plausibly plead that

Defendants, (1) with punitive intent, (2) personally en-

gaged in conduct that caused the challenged conditions of

'’ Because we conclude that Plaintiffs’ substantive due process, equal

protection, and unreasonable punitive strip searches claims do not

extend Bivens to a new context, we need not address “whether there

is an alternative remedial scheme available to the plaintiff” or

“whether special factors counsel hesitation in creating a Bivens rem-

edy.” Arar, 585 F.3d at 572 (internal quotation marks and brackets

omitted).

Turkmen and Sachdeva, the Passaic Plaintiffs, do not bring a sub-

stantive due process conditions of confinement claim or unreasonable

strip search claim (Claims 1 and 6).

The parties have not argued for a different standard in this appeal.

Accordingly, we do not address whether the rights of civil immigra-

tion detainees should be governed by a standard that is even more

protective than the standard that applies to pretrial criminal detain-

ees.

30a

confinement. See id. at 538; see also /qbal, 556 U.S. at

676-77. Absent “an expressed intent to punish,” Wolfish,

441 U.S. at 538, we may only infer that Defendants acted

with punitive intent if the challenged conditions were

“not reasonably related to a legitimate goal—if [they

were| arbitrary or purposeless,” id. at 539.

B. The DOJ Defendants

While the DOJ Defendants do not raise a no-Bivens-

claim defense, they do forcefully contest liability here

with powerful post-/gbal assertions that “the former At-

torney General and FBI Director did not themselves re-

quire or specify any of the particular conditions set forth

in the complaint. And they cannot be held liable on what

amounts to a theory of respondeat superior for the ac-

tions of others who may have imposed those conditions.”

Ashcroft & Mueller Br. 10. They contend that because

the former Attorney General’s initial detention order was

constitutional, having been approved by the Supreme

Court in /gbal, the DOJ Defendants were “entitled to

presume that the facially constitutional policy would in

turn be implemented lawfully ....” Jd. at 9. We agree

... toa point.

The MDC Plaintiffs concede that the DOJ Defendants

did not create the particular conditions in question. See

Turkmen I11, 915 F. Supp. 2d at 326 n.4; see also OIG

Report at 19, 112-13 (reporting that, at least initially,

BOP officials determined the conditions under which de-

tainees would be held, without direction from the FBI or

elsewhere). The MDC Plaintiffs similarly fail to plead

that Ashcroft’s initial arrest and detention mandate re-

quired subordinates to apply excessively restrictive con-

ditions to civil detainees against whom the government

lacked individualized suspicion of terrorism. Given the

mandate’s facial validity, the DOJ Defendants had a right

sla

to presume that subordinates would carry it out in a con-

stitutional manner. See Al./undi v. Estate of Rockefel-

ler, 885 F.2d 1060, 1065-66 (2d Cir. 1989). But that is not

the end of the matter.

The MDC Plaintiffs plausibly plead that the DOJ De-

fendants were aware that illegal aliens were being de-

tained in punitive conditions of confinement in New York

and further knew that there was no suggestion that those

detainees were tied to terrorism except for the fact that

they were, or were perceived to be, Arab or Muslim.”

The MDC Plaintiffs further allege that while knowing

these facts, the DOJ Defendants were responsible for a

decision to merge the New York List with the national

INS List, which contained the names of detainees whose

detention was dependent not only on their illegal immi-

grant status and their perceived Arab or Muslim affilia-

tion, but also a suspicion that they were connected to ter-

rorist activities. The merger ensured that the MDC

” The dissent counters that “[t/his is not apparent in the record,” cit-

ing Plaintiff Bajracharya’s videotaping of a building in Queens as ev-

idence of that Plaintiff’s possible tie to terrorism. Dissenting Op.,

post at 43 n.28. The dissent makes no mention, of course, of Plaintiff

Khalifa, who was told that the FBI was only interested in his room-

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

anyway, Compl. 1197; or of Plaintiff Mehmood, who was arrested

and detained in the ADMAX SIIU in place of his wife, in whom the

FBI had apparently expressed interest, but who was still breastfeed-

ing their son, id. 1159. The dissent further claims that detainees

were not sent to the ADMAX SHU based on their perceived race or

religion, but—as the OIG Report states—based on whether they

were designated of “high interest” to the PENTTBOM investigation.

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

as the dissent concedes, id., Plaintiffs’ well-pleaded Complaint spe-

cifically contradicts this point: the MDC Plaintiffs were detained in

the ADMAX SHU “even though they had not been classified ‘high

interest,’” Compl. 9 4.

32a

Plaintiffs would continue to be confined in punitive condi-

tions. This is sufficient to plead a Fifth Amendment sub-

stantive due process violation.*' Given the lack of indi-

vidualized suspicion, the decision to merge the lists was

not “reasonably related to a legitimate goal.” See Wolf-

ish, 441 U.S. at 539. The only reason why the MDC

Plaintiffs were held as if they were suspected of terror-

ism was because they were, or appeared to be, Arab or

Muslim. We conclude that this plausibly pleads punitive

intent. /d.

1. Punitive Conditions of Confinement

Contrary to the district court’s conclusion that Plain-

tiffs failed to “allege that the DOJ [DJefendants were

even aware of [the] conditions,” Turkmen JI], 915 F.

Supp. 2d at 340, the Complaint and the OIG Report each

contain allegations of the DOJ Defendants’ knowledge of

the challenged conditions. Plaintiffs allege, inter alia,

that Mueller ran the 9/11 investigation out of FBI Head-

quarters; and that “Ashcroft, Mueller[,| and Ziglar re-

ceived detailed daily reports of the arrests and deten-

tions,” Compl. 147; see also id. 19 63-65.

The OIG Report makes plain the plausibility of Plain-

tiffs’ allegations. The “| DOJ] was aware of the BOP’s de-

cision to house the September 11 detainees in

“ We acknowledge, as the dissent points out, that the MDC Plaintiffs

did not advance the “lists-merger theory” before this Court or the

district court. Dissenting Op., post at 43 n.28. Rather, they struc-

tured the Complaint to challenge Ashcroft’s arrest and detention

mandate as initially formulated and generally applied. In examining

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

are inadequate to challenge the validity of the policy ab initio, but do

state a claim with regard to the merger decision, an event that Plain-

tiffs explicitly reference in the Complaint. See Compl. 1 47; Pls.’ Br.

38. Sufficiency analysis requires a careful parsing of the Complaint

and that is all that has occurred here.

33a

high-security sections in various BOP facilities.”. OIG

Report at 19. The Deputy Chief of Staff to Ashcroft told

the OIG that an allegation of mistreatment was called to

the Attorney General’s attention. /d. at 20. And BOP

Director Kathy Hawk Sawyer stated that in the weeks

following 9/11, the Deputy Attorney General’s Chief of

Staff and the Principal Associate Deputy Attorney Gen-

eral “called her . .. with concerns about detainees’ ability

to communicate both with those outside the facility and

with other inmates,” id. at 112, which she said confirmed

for her that the decision to house detainees in the restric-

tive conditions of the ADMAX SHU was appropriate, id.

at 112-113. This supports the reasonable inference that

not only was Ashcroft’s office aware of some of the condi-

tions imposed, but affirmatively supported them. See al-

so id. at 113 (DOJ officials told Sawyer to “take |BOP|

policies to their legal limit”). Furthermore, the OIG

Report also makes clear that conditions in the ADMAX

SHU began to receive media attention soon after deten-

tions began, see id. at 2, 5;” thus, it seems implausible

“The dissent attempts to minimize the force of these comments,

claiming that communications about a condition of confinement that

was lifted before the merger decision cannot support an inference as

to what the DOJ Defendants knew about the conditions in the AD-

MAX SHU. Dissenting Op., post at 56-57. Simply put, we disagree.

The fact remains that a condition of confinement, less severe and

abusive than the conditions at issue here, garnered the attention of

senior officials; it stands to reason that conditions that kept detain-

ees in their cells for twenty-three hours a day, denied them sleep by

bright lights, and involved excessive strip searches and physical

abuse, would have come to the DOJ Defendants’ attention.

” See, e.y., Neil A. Lewis, A Nation Challenged: The Detainees; De-

tentions After Attacks Pass 1,000, U.S. Says, N.Y. TIMES, Oct. 30,

2001, available at http:/Awww.nytimes.com/2001/10/30/us/a-nation

challenged-the-detainees-detentionsafter-attacks-pass-1000-us-says

34a

that the public’s concerns did not reach the DOJ Defend-

ants’ desks.

Of course, we cannot say for certain that daily reports

given to Ashcroft and Mueller detailed the conditions at

the ADMAX SHU or that the daily meetings of the SIOC

Working Group (containing representatives from each of

the DOJ Defendants’ offices) discussed those conditions.

But on review of a motion to dismiss, Plaintiffs need not

prove their allegations; they must plausibly plead them.

At a minimum, a steady stream of information regarding

the challenged conditions flowed between the BOP and

senior DOJ officials. Given the MDC Plaintiffs’ allega-

tions, the media coverage of conditions at the MDC, and

the DOJ Defendants’ announced central roles in

PENTTBOM, it seems to us plausible that information

concerning conditions at the MDC, which held eighty-

four of the 9/11 detainees, reached the DOJ Defendants.”'

-html (citing “common news reports of abuse involv|ing| mistreat-

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

“ Furthermore, the OIG reports were issued pursuant to the Office

of the Inspector General’s responsibilities under the USA PATRIOT

Act, which was enacted on October 26, 2001. See OIG Report at 3

n.6. The PATRIOT Act, Section 1001, reads: “The Inspector Gen-

eral of the Department of Justice shall designate one official who

shall—{1) review information and receive complaints alleging abuses

of civil rights and civil liberties by employees and officials of the De-

partment of Justice.” PATRIOT Act, Pub. L. No. 107-56, § 1001, 115

Stat. 272 (2001). “On October 30, 2001, the OIG reviewed a newspa-

per article in which a September 11 detainee alleged he was physical-

ly abused when he arrived at the MDC on October 4, 2001. Based on

the allegations in the article, the OIG’s Investigations Division initi-

ated an investigation into the matter.” OIG Report at 144. It seems

to us most plausible that if the Ol1G—who is “under the authority, di-

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

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

lenged conditions at the MDC, the DOJ Defendants were as well.

35a

2. Lack of Individualized Suspicion

The MDC Plaintiffs also plausibly plead that the DO.)

(Defendants were aware that the FBI had not developed

any connection between some of the detainees and ter-

rorist activities. The Complaint and OIG Report both

make clear that the New York FBI arrested all

“out-of-status” aliens encountered—even coincidental-

ly—in the course of investigating a PENTTBOM lead.

OIG Report at 41-42, 69-70. These arrestees were

“deemed ‘of interest’ for purposes of the ‘hold until

cleared’ policy, regardless of the strength of the evidence

or the origin of the lead.” /d. at 41. Those deemed of

“high interest” were sent to the MDC’s ADMAX SHU,

id. at 111, but “there was little consistency or precision to

the process that resulted in detainees being labeled ‘high

interest,’” id. at 158.”

Even if the DOJ Defendants were not initially aware

of this practice, the Complaint and OIG reports support

the reasonable inference that Ashcroft and Mueller

learned of it within weeks of 9/11. The Complaint clearly

alleges that the DOJ Defendants agreed that individuals

for whom the FBI could only articulate an immigration

law violation as a reason for detention—and for whom

the FBI had not developed any reliable tie to terrorism—

would continue to be treated as if the FBI had reason to

believe the detainees had ties to terrorist activity.

Compl. 167. Plaintiffs point to the detailed daily reports

” Even some detainees who were not labeled “high interest” were

nonetheless sent to the MDC’s ADMAX SHU. For example, “Ab-

basi, Bajracharya, Mehmood, and Khalifaf | were placed in the AD-

MAX SHU even though they had not been classified ‘high interest’

and despite the absence of any information indicating they were

dangerous or involved in terrorism, or any other legitimate reason

for such treatment.” Compl. 94.

36a

that the DOJ Defendants received regarding arrests and

detentions and allege that the DOJ Defendants “were

aware that the FBI had no information tying Plaintiffs

and class members to terrorism prior to treating them as

‘of interest’ to the PENTTBOM investigation.” /d. 147.

Indeed, they claim that Ashcroft, in particular, “insisted

on regular, detailed reporting on arrests”; they allege

that he received a daily “Attorney General’s Report” on

persons arrested. /d. 163. They further allege that it

was Ziglar who was ultimately responsible for providing

much of this information—which he gleaned from his

twice daily briefings with his staff regarding the 9/11 de-

tentions—to Ashcroft, indicating that he too was aware of

the lack of individualized suspicion. /d. 164.

Once again, the OIG reports also support the MDC

Plaintiffs’ allegation that the DOJ Defendants became

aware of the lack of individualized suspicion for some de-

tainees held in the challenged conditions of confinement.

The OIG Report states that “[a] variety of INS, FBI, and

[DOJ] officials who worked on the| | September 11 de-

tainee cases told the OIG that it soon became evident

that many of the people arrested during’ the

PENTTBOM investigation might not have a nexus to

terrorism.” OIG Report at 45. Other DOJ officials also

stated that it “soon became clear” that only some of the

detainees were of “genuine investigative interest”—as

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

for whom the FBI had no suspicion of a connection to the

attacks or terrorism in general. /d. at 47.

The OIG Report supports the reasonable inference

that this information, known by other DOJ officials, came

to the attention of the DOJ Defendants. In particular,

the OIG Report specifies that Ashcroft and Mueller were

involved in a “‘continuous meeting’ for the first few

37a

months” after 9/11, at which “the issue of holding aliens

until they were cleared was discussed.” /d. at 39-40.

Furthermore, the OLG Report makes clear that the SIOC

Working Group, containing representatives from the of-

fices of each of the DOJ Defendants, was aware of the

lack of evidence tying detainees to terrorism. /d. at 53-

57. As we have already noted, the OIG Report details

how at some point in October 2001, the SIOC Working

Group learned about the New York List and that “offi-

cials at the INS, FBI, and [DOJ] raised concerns about,

among other things, whether the aliens had any nexus to

terrorism.” /d. at 53. Clearly this created a major prob-

lem for the DOJ. The existence of the New York List

suddenly presented the possibility of more than doubling

the number of detainees subject to the hold-until-cleared

policy.” It seems quite plausible that DOJ officials would

confer with the Attorney General and the Director of the

FBI (it was, after all, his agents who were arresting

out-of-status Arab and Muslim aliens and holding them

as if they were “of interest” without any suspicion of ter-

rorist connections) about the problem of the New York

List and the hundreds of detainees picked up in contra-

vention of Ashcroft’s stated policy. Indeed, it seems to us

implausible they did not. Finally, the OIG Report once

again makes clear that media reports regarding allega-

tions of mistreatment of detainees alleged that detainees

remained in detention even though they had no involve-

ment in terrorism. /d. at 2, 5.

3. The Decision to Merge the Lists

Plaintiffs plausibly plead that, despite the DOJ De-

fendants’ knowledge of the conditions at the ADMAX

” In October and November of 2001, the New York List contained

approximately 300 detainees while the INS List for the rest of the

nation contained only 200 detainees. OLG Report at 54.

38a

SHU and the lack of any form of verified suspicion for a

large number of those detainees on the New York List,

Ashcroft approved, or at least endorsed, a decision to

merge the New York List. The MDC Plaintiffs contend

that he did so notwithstanding vocal opposition from var-

ious internal sources. The Complaint clearly alleges that

“lalgainst significant internal criticism from INS agents

and other federal employees involved in the sweeps, Ash-

croft ordered that, despite a complete lack of any infor-

mation or a statement of FBI interest, all such Plaintiffs

and class members [on the New York List] be detained

until cleared and otherwise treated as ‘of interest.’”

Compl. 147. By taking this action, Ashcroft ensured that

some of the individuals on the New York List would be

placed in, or remain detained in, the challenged condi-

tions of confinement.

Our dissenting colleague levels a concern as to the im-

port of the merger of the lists and counters that nothing

in the OIG reports confirms Ashcroft’s personal

knowledge of the correlation between the merger of the

lists and the lack of individualized suspicion as to the

MDC Plaintiffs. The dissent contends that, because

Plaintiffs’ allegations are not based on personal know-

ledge, there is no factual basis in the record for them.

Dissenting Op., post at 45. True enough that Ashcroft

did not acknowledge that he was aware of the merger of

the lists and its implication for the MDC Plaintiffs, nor

did he take responsibility for it. But then again a review

of the OIG Report gives no indication that anybody asked

him.

The absence of an inquiry to the former Attorney

General is not a criticism of the Office of the Inspector

General's methods, but a simple recognition of a fact that

points out a key difference between our view of the OIG

39a

reports and that of the dissent. For us, the OIG reports

provide context for the allegations of the Complaint. See

supra note 6. However, it would be a mistake to think of

the OIG reports as a repository of all relevant facts of

that troubled time; but that is exactly what the dissent

seems inclined to do. The dissent measures plausibility

by the absence or presence of fact-findings in the OIG

reports. Thus, for the dissent, the fact that the Attorney

yeneral may not have been questioned is confirmation

that he knew nothing. The reports make no such asser-

tion.

It may be that following discovery it will be clear that

Ashcroft was not responsible for the merger decision

(nor was Mueller or Ziglar), but that is not the question

at the pleading stage. The question is whether the MDC

Plaintiffs plausibly plead that Ashcroft was responsible.

Given the importance of the merger and its implications

for how his lawful original order was being carried out,

we think the MDC Plaintiffs plausibly allege that he was.

Indeed, the OIG Report supports the MDC Plaintiffs’

allegation that Ashcroft was responsible for the merger

decision. An incident at one of the New York List meet-

ings provides additional context that supports that alle-

gation. At the November 2, 2001 meeting, the group dis-

cussed the necessity of CIA checks, often a prerequisite

to a 9/11 detainee’s release from detention. OIG Report

at 55. In response, Stuart Levey, the Associate Deputy

Attorney General responsible for oversight of immigra-

tion issues, stated that he had to “check” before com-

municating a decision on whether “any detainees could be

released without the CIA check.” /d. at 56. This re-

sponse could reasonably indicate (a) a lack of authority to

respond to the question, or (b) that Levey wanted to con-

sider other views before making the decision. Because

40a

either is plausible, it is irrelevant that only inference (a)

supports the conclusion that Levey could not answer the

question on his own and had to take it to more senior offi-

cials.”

Furthermore, in late November 2001, when the INS

Chief of Staff approached Levey about the CIA check

policy, Levey said that he “did not feel comfortable mak-

ing the decision about [the] request to change the CIA

check policy without additional input.” /d. at 62. It

seems to us that if Levey was not comfortable changing

the CIA check policy without input from more senior offi-

cials, he certainly would not have been comfortable mak-

ing the decision on his own to double the number of de-

tainees subject to that policy in the first instance.”

The dissent argues that the OIG Report forecloses the

plausibility of the allegation that Levey brought the list-

“ The OIG Report states that Levey specifically consulted David

Laufman, the Deputy Attorney General's Chief of Staff. OIG Report

at 62. The dissent takes this as definitive proof that Ashcroft was not

consulted on this, or the merger, decision. Dissenting Op., post at

47-49. The dissent mischaracterizes our reference to the CIA checks

decision. We do not contend that Levey consulted Ashcroft about

that decision, nor do we need to. In our view, the fact that Levey

spoke to Laufman about that decision is not the end of the matter;

indeed, the only relevance of the CIA checks decision, period, is that

Levey was not capable of making it on his own, suggesting that he

also would not be able to make the list-merger decision on his own.

* Indeed, Ziglar told the OIG that he contacted Ashcroft’s office on

November 7, 2001, to discuss concerns about the process of clearing

names from the INS Custody List, especially the impact that merg-

ing the lists would have on that process and said that “based on these

and other contacts with senior Department officials, he believed the

Department was fully aware” of the INS’s concerns. OIG Report at

66-67. This also suggests that Levey had communicated those con-

cerns to Ashcroft, who nonetheless made the decision to merge the

lists.

4la

merger decision to Ashcroft because “Levey made the

lists-merger decision ‘[a]t the conclusion of the |Novem-

ber 2] meeting’ at which the subject was first raised to

him.” Dissenting Op., post at 49 (quoting OIG Report at

56). But the OIG Report does not indicate that the mer-

ger issue was first raised to Levey at the November 2

meeting. Rather, the OIG Report makes clear that the

issue of the New York List was discovered in October

2001,” and that the decision to merge the lists was com-

municated at the November 2 meeting. Thus, surely it is

plausible that Levey consulted with more senior officials,

including Ashcroft, prior to that meeting.” Of course,

discovery may show that Levey was solely responsible

for the decision. But, again, the question is whether

Plaintiffs’ allegations support the inference that the deci-

sion was Ashcroft’s; they do.

The MDC Plaintiffs’ allegations against Mueller and

Ziglar are also sufficient. The Complaint alleges, inter

” While the dissent’s observation that Levey did not attend the Oc-

tober 22, 2001 meeting during which the “problems presented by the

New York List” were discussed is accurate, it is also irrelevant. See

Dissenting Op., post at 49-50 (quoting OIG Report at 55). We do not

contend that Levey learned about the New York List at the October

22 meeting, but simply that he learned about it before the November

2 meeting, giving him time to consult with more senior officials, in-

cluding Ashcroft, before communicating a decision at that November

meeting. Indeed, one would think that Levey would not attend the

November 2 meeting without knowing its agenda.

” The dissent challenges the sufficiency of Plaintiffs’ allegations and

our reading of them as “wholly speculative.” Dissenting Op., post at

48. Of course, Plaintiffs have no way of knowing what Levey and

Ashcroft discussed; nor do we. /gbal does not require as much, but

rather “sufficient factual matter, accepted as true” to allow the court

to draw the reasonable inference that Ashcroft was ultimately re-

sponsible for the decision. 556 U.S. at 678. We believe that Plaintiffs

have met this burden.

42a

alia, that Ashcroft made the decision to merge the lists in

spite of the lack of individualized suspicion linking the

MDC Plaintiffs to terrorism and that “Mueller and Ziglar

were fully informed of this decision, and complied with

it.” Compl. 147; see also id. 1955-57, 67. Mueller and

Ziglar are not exculpated from this claim merely because

Plaintiffs allege that they complied with, as opposed to

ordered, the list merger. Plaintiffs plausibly plead that

both were aware that the separate list contained detain-

ees for whom the FBI had asserted no interest and that

subjecting them to the challenged conditions would be fa-

cially unreasonable. Even if an official is not the source

of a challenged policy, that official can be held personally

liable for constitutional violations stemming from the ex-

ecution of his superior’s orders if those orders are facially

invalid or clearly illegal. See, e.g., Varrone v. Bilotti, 123

F.3d 75, 81 (2d Cir. 1997) (granting defendants qualified

immunity where there was “no claim that the order was

facially invalid or obviously illegal”). In this instance,

Plaintiffs plausibly allege that Ashcroft’s decision was fa-

cially invalid; it would be unreasonable for Mueller and

Ziglar to conclude that holding ordinary civil detainees

under the most restrictive conditions of confinement

available was lawful.

4. Punitive Intent

The MDC Plaintiffs must show not only that the DOJ

Defendants knew of and approved continued use of the

ADMAX SHU, but also that they did so with punitive in-

tent—that they endorsed the use of those conditions with

an intent to punish the MDC Plaintiffs. Federal courts

have long recognized that punitive intent is not often ad-

mitted. The Supreme Court has noted that it can be in-

ferred if the conditions of confinement are “not reasona-

bly related to a legitimate goal.” Wolfish, 441 U.S. at

43a

539. If the conditions under which one is held have no

reasonable connection to a legitimate goal of the state,

then one logical assumption is that they are imposed for

no other purpose than to punish. See id.

The DOJ Defendants argue that even if they knew of

the plight of the MDC Plaintiffs, the decision to continue

their confinement at the MDC under exceptionally harsh

conditions was motivated by national security concerns—

a legitimate worry during the days following the 9/11 at-

tacks—and not some animus directed at the MDC Plain-

tiffs. They seem to imply that once “national security”

concerns become a reason for holding someone, there is

no need to show a connection between those concerns and

the captive other than that the captive shares common

traits of the terrorist: illegal immigrant status and a per-

ceived Arab or Muslim affiliation. Indeed, our dissenting

colleague asserts that because the MDC Plaintiffs were,

or appeared to be, members of the group—Arab or Mus-

lim males—that was targeted for recruitment by al

Qaeda that they could be held in the ADMAX SHU with-

out any reasonable suspicion of terrorist activity. Dis-

senting Op., post at 64-65, 76-77. Under this view, the

MDC Plaintiffs were not held with punitive intent be-

cause there was no way to know that they were not in-

volved in terrorist activities. Simply being in the United

States illegally and being, or appearing to be, Arab or

Muslim was enough to justify detention in the most re-

strictive conditions of confinement available. Indeed,

Levey admitted that the decision to merge the lists, en-

suring that some of the 9/11 detainees would be subject

to the challenged harsh conditions of confinement, was

made because he “wanted to err on the side of caution so

that a terrorist would not be released by mistake.” OIG

Report at 56.

44a

This argument rests on the assumption that if an indi-

vidual was an out-of-status Arab or Muslim, and someone

called the FBI for even the most absurd reason, that in-

dividual was considered a possible threat to national se-

curity. It presumes, in essence, that all out-of-status Ar-

abs or Muslims were potential terrorists until proven

otherwise. It is built on a perception of a race and faith

that has no basis in fact. There was no legitimate gov-

ernmental purpose in holding someone in the most re-

strictive conditions of confinement available simply be-

cause he happened to be—or, worse yet, appeared to

be—aArab or Muslim.

To be clear, it is “no surprise”—nor is it constitutional-

ly problematic—that the enforcement of our immigration

laws in the wake of 9/11 had a “disparate, incidental im-

pact on Arab Muslims.” /qbal, 556 U.S. at 682. And we

do not contend that Supreme Court, or our own, prece-

dent requires individualized suspicion to subject detain-

ees to generally restrictive conditions of confinement; re-

striction is an incident of detention. Rather, we simply

acknowledge that “if a restriction or condition is not rea-

sonably related to a legitimate goal—if it is arbitrary or

purposeless—a court permissibly may infer that the pur-

pose of the governmental action is punishment that may

not constitutionally be inflicted upon detainees qua de-

tainees.” Wolfish, 441 U.S. at 539. We believe, then, that

the challenged conditions—keeping detainees in their

cells for twenty-three hours a day, constructively denying

them recreation and exposing them to the elements, strip

searching them whenever they were removed from or re-

turned to their cells, denying them sleep by bright

lights—were not reasonably related to a legitimate goal,

but rather were punitive and unconstitutional.

45a

While national security concerns could justify detain-

ing those individuals with suspected ties to terrorism in

these challenged conditions for the litany of reasons ar-

ticulated by the dissent, see Dissenting Op., post at 67-68,

those concerns do not justify detaining individuals solely

on the basis of an immigration violation and their per-

ceived race or religion in those same conditions. Individ-

ualized suspicion is required here because, absent some

indication that the detainees had a tie to terrorism, the

restrictions or conditions of the ADMAX SHU were “ar-

bitrary or purposeless.” Wolfish, 441 U.S. at 539."

Indeed, in Wolfish, the Supreme Court acknowledged

that “loading a detainee with chains and shackles and

throwing him in a dungeon may ensure his [detention]

and preserve the security of the institution. But it would

be difficult to conceive of a situation where conditions so

harsh, employed to achieve objectives that could be ac-

complished in so many alternative and less harsh meth-

ods, would not support a conclusion that the purpose for

which they were imposed was to punish.” /d. at 539 n.20.

That is the situation before us. Clearly detention condi-

tions less restrictive than the ADMAX SHU were feasi-

wee OS -----

" The dissent cites several cases that it claims demonstrate that in-

dividualized suspicion is not required for imposing restrictive condi-

tions of confinement. Dissenting Op., post at 62-63. We do not disa-

gree: individualized suspicion is not required to impose conditions

that are reasonably related to a legitimate governmental objective.

Wolfish, 441 U.S. at 539. Thus, in each of the cases cited by the dis-

sent, rather than announce that individualized suspicion was not re-

quired, the Supreme Court determined that the restrictions at issue

in each of those cases were related to the legitimate goal of prison

security and, therefore, were not punitive. Thus, the cases cited by

the dissent do not change our conclusion here, where the challenged

conditions—the most restrictive available and imposed on detainees

qiut detainees—are not reasonably related to either the goal of pris-

on security, or national security.

46a

ble for the MDC Plaintiffs, given that the detainees held

in the Passaic facility “were not held in isolation or oth-

erwise placed in restrictive confinement.” Compl. 166.

Placing the MDC Plaintiffs in chains and shackles and

throwing them in the ADMAX SHU ensured that they

posed no threat. in the aftermath of 9/11; but we can reach

no conclusion other than that the DOJ Defendants’ deci-

sion to do so was made with punitive intent.

In view of the foregoing, we hold that the MDC Plain-

tiffs fail to plausibly plead a substantive due process

claim against the DOJ Defendants coextensive with the

entire post-9/11 investigation and reaching back to the

time of Plaintiffs’ initial detention. Nonetheless, Plain-

tiffs’ well-pleaded allegations, in conjunction with the

OIG Report’s documentation of events such as the New

York List controversy, render plausible the claim that by

the beginning of November 2001, Ashcroft knew of, and

approved, the MDC Plaintiffs’ confinement under severe

conditions, and that Mueller and Ziglar complied with

Ashcroft’s order notwithstanding their knowledge that

the government had no evidence linking the MDC Plain-

tiffs to terrorist activity. Discovery may ultimately prove

otherwise, but for present purposes, the MDC Plaintiffs’

substantive due process claim—with the exception of the

temporal limitation noted above—may proceed against

the DOJ Defendants.

5. Qualified Immunity

A defendant is entitled to qualified immunity if he can

establish (1) that the complaint fails to plausibly plead

that the defendant personally violated the plaintiff’s con-

stitutional rights, or (2) that the right was not clearly es-

tablished at the time in question. See Pearson v. Calla-

han, 555 U.S. 228, 232 (2009); Varrone, 123 F.3d at 78

(noting that the qualified immunity inquiry turns, gener-

AZ7a

ally, on the objective legal reasonableness of a defend-

ant’s actions).

For the reasons stated above, the MDC Plaintiffs

plausibly plead that the DOJ Defendants violated their

substantive due process rights. With regard to the sec-

ond prong of this inquiry, the law regarding the punish-

ment of pretrial detainees was clearly established in the

fall of 2001. As discussed, Wolfish made clear that a par-

ticular condition or restriction of pretrial detention not

reasonably related to a legitimate governmental objective

is punishment in violation of the constitutional rights of

detainees. See 441 U.S. at 535-39 & n.20. And in Hasty,

this Court denied qualified immunity with respect to a

materially identical conditions claim against Hasty. 490

F.3d at 168-69. We explained that “|t|he right of pretrial

detainees to be free from punitive restraints was clearly

established at the time of the events in question, and no

reasonable officer could have thought that he could pun-

ish a pretrial detainee by subjecting him to the practices

and conditions alleged by the Plaintiff.” /d. at 169.

Hasty further rejected the argument that the post-

9/11 context warranted qualified immunity even if it was

otherwise unavailable. /d. at 159-60, 169. Recognizing

the “gravity of the situation” that 9/11 presented, we ex-

plained that qualified immunity remained inappropriate

because a pretrial detainee’s right to be free from pun-

ishment does not vary with the surrounding circumstanc-

es. Jd. at 159. Nothing has undermined the logic or

precedential authority of our qualified immunity holding

in Hasty. We therefore conclude that the DOJ Defend-

ants are not entitled to qualified immunity on the MDC

Plaintiffs’ conditions of confinement claim.

48a

C. The MDC Defendants

In his opinion below, Judge Gleeson divided the MDC

Plaintiffs’ conditions of confinement claim against the

MDC Defendants into two categories: “official condi-

tions” allegations and “unofficial abuse” allegations. The

“official conditions” allegations concern express confine-

ment policies that the MDC Defendants approved and

implemented; the “unofficial abuse” allegations concern

the physical and verbal abuse that the MDC Defendants

employed or permitted their subordinates to employ. We

find this taxonomy helpful in analyzing the conditions

claim against Hasty, Sherman, and Zenk.*

1. Official Conditions

The MDC Plaintiffs generally allege that the “official

conditions” to which the MDC Defendants subjected

them constituted punishment. We do not address wheth-

er Plaintiffs have sufficiently alleged an express intent to

punish, but rather analyze whether they have plausibly

pleaded that (1) the MDC Defendants caused them to

suffer the challenged conditions, and that (2) the chal-

lenged conditions were “not reasonably related to a legit-

imate goal,” which allows us to infer punitive intent,

Wolfish, 441 U.S. at 539.

The MDC Plaintiffs plausibly plead that Hasty and

Sherman are personally responsible for and caused the

MDC Plaintiffs to suffer the challenged conditions. The

Yomplaint contains allegations that Hasty ordered the

creation of the ADMAX SHU and directed two of his

subordinates to design “extremely restrictive conditions

of confinement.” Compl. 1924, 75; see also id. 176 (de-

© Plaintiffs’ allegations against Zenk do not extend to the “unofficial

abuse” nor to any harm arising from the “official conditions” that oc-

curred prior to April 22, 2002, the date he beeame MDC Warden.

49a

scribing the extreme conditions in the ADMAX SHU).

According to the Complaint, those conditions were then

approved and implemented by Hasty and Sherman. /d.

175.

The OIG reports support these allegations. While the

decision to impose highly restrictive conditions was made

at BOP headquarters, OIG Report at 19, MDC officials

created the particular conditions imposed, id. at 124-25.

The reports specify that MDC officials modified one wing

of the preexisting SHU to accommodate the detainees

and that the ADMAX SHU was “designed to confine the

detainees in the most restrictive and secure conditions

permitted by BOP policy.” Supplemental OIG Report at

2-3. As Warden and Associate Warden of the MDC, Has-

ty and Sherman had the responsibility to carry out these

tasks. But that alone would not sustain liability for ei-

ther.

However, the MDC Plaintiffs also plausibly plead that

Hasty and Sherman subjected them to the challenged

conditions with punitive intent because the conditions

were “not reasonably related to a legitimate goal.” Wolf-

ish, 441 U.S. at 539. Specifically, the MDC Plaintiffs al-

lege that Hasty and Sherman imposed these harsh condi-

tions despite the fact that they “were aware that the FBI

had not developed any information to tie the MDC Plain-

tiffs [and other detainees] they placed in the ADMAX

SHU to terrorism.” Compl. 169. As discussed above

with respect to the DOJ Defendants, individualized sus-

picion was not required to subject detainees to the re-

strictive conditions of confinement inherent in any deten-

tion. But the challenged conditions were not simply re-

strictive; they were punitive: there is no legitimate gov-

ernmental purpose in holding someone as if he were a

50a

terrorist simply because he happens to be, or appears to

be, Arab or Muslim.

The MDC Defendants, and our dissenting colleague,

note that BOP Headquarters ordered that the detainees

“be placed in the highest level of restrictive detention”

and, thus, argue that we cannot infer punitive intent from

the MDC Defendants’ compliance with that order. See

Dissenting Op., post at 70 n.40, 71 (quoting OIG Report

at 112). They further claim that because the FBI had

designated the individuals held in the ADMAX SHU as

“of interest,” the MDC Defendants are absolved from li-

ability. See, e.g., Hasty Br. 17, 25-26.

But even if Hasty and Sherman initially believed that

they would be housing only those detainees who were

suspected of ties to terrorism, the Complaint contains

sufficient factual allegations that the MDC Defendants

eventually knew that the FBI lacked any individualized

suspicion for many of the detainees that were sent to the

ADMAX SHU. Plaintiffs allege that Hasty and Sherman

received regular written updates explaining why each de-

tainee had been arrested and including “all evidence rel-

evant. to the danger he might pose” to the MDC, and that

these updates often lacked any indication of a suspicion of

a tie to terrorism. Compl. 169." They further explain

that “{t]he exact language of these updates was repeated

weekly, indicating the continued lack of any information

~ For example, the MDC Defendants were informed that Plaintiff

Abbasi was “‘encountered’ by INS pursuant to an FBI lead; that he

used a fraudulent passport to enter the U.S. to seek asylum, and lat

er destroyed that passport; that he requested and was denied vari-

ous forms of immigration relief; that he obtained and used a fraudu-

lent advance parole letter to enter the country, and that he was thus

inadmissible. The update included no statement of FBI interest in

Abbasi.” Compl. 972.

5la

tying |Plaintiffs] to terrorism, or tending to show that

any of them might pose a danger.” /d. 173.

The MDC Plaintiffs relatedly allege that Hasty and

Sherman knew that BOP regulations require individual-

ized assessments for detainees placed in the SHU for

more than seven days, yet ordered the MDC Plaintiffs’

continued detention in the ADMAX SHU without per-

forming these assessments, and Hasty “ordered [his]

subordinates to ignore BOP regulations regarding deten-

tion conditions.” /d. 168; see also zd. 1973-74.

The MDC Plaintiffs further allege that Hasty and

Sherman approved a document that falsely stated that

“executive staff at MDC had classified the ‘suspected ter-

rorists’ as ‘High Security’ based on an individualized as-

sessment of their ‘precipitating offense, past terrorist

behavior, and inability to adapt to incarceration.’” /d.

174. In addition, the MDC Plaintiffs allege that Hasty

and Sherman continued to detain them in the ADMAX

SHU even after affirmatively learning that the FBI

lacked individualized evidence linking Plaintiffs to terror-

ism. See id. 1969-71, 74. These allegations are but-

tressed by Plaintiffs’ assertions that they remained con-

fined in the ADMAX SHU even after receiving final

clearance from the New York FBI field office and FBI

Ileadquarters. For instance, the Complaint alleges that

Benamar Benatta was cleared on November 14, 2001,

that this information was available to the MDC, and that

Benatta nonetheless remained in the ADMAX SHU until

April 30, 2002. See id. 1188.

The OIG Report directly supports these allegations; as

stated by one BOP official, all 9/11 detainees at the MDC

were placed in the ADMAX SHU and subjected to the of-

ficial conditions because, at least initially, “the BOP did

not really know whom the detainees were.” OIG Report

52a

at 19; see also Compl. 14; OIG Report at 112, 126. Spe-

cifie factual allegations that Hasty and Sherman failed to

assess whether the restrictive conditions were appropri-

ate for individual 9/11 detainees buttress the MDC Plain-

tiffs’ claim that the challenged conditions were not rea-

sonably related to a legitimate goal, and that Hasty and

Sherman were personally responsible for the treatment.

We recognize that the MDC Defendants may have

been in a difficult position when they received detainees

without accompanying information regarding those indi-

viduals. Record proof may eventually establish that the

MDC Plaintiffs’ claim is limited to the period of time that

Hasty and Sherman knew that the MDC Plaintiffs were

being held without suspicion of ties to terrorism. But we

cannot conclude, at least at the motion to dismiss stage,

that it was reasonable to take a default position of impos-

ing the most restrictive form of detention available when

one lacks individualized evidence that the detainee poses

a danger to the institution or the nation. Accordingly, we

conelude that the MDC Plaintiffs plausibly plead a sub-

stantive due process claim against Hasty and Sherman as

to the official conditions.

The Complaint does not, however, permit an inference

of personal liability as to Zenk, who did not become MDC

Warden until April 22, 2002, when only two Plaintiffs re-

mained in the ADMAX SHU. Fundamentally, the allega-

tions that personally identify Zenk are too general and

conclusory to support Plaintiffs’ claim. We therefore

dismiss the MDC Plaintiffs’ substantive due process

claim against Zenk.

2. Unofficial Abuse

The district court properly viewed the MDC Plaintiffs’

“unofficial abuse” allegations under the deliberate indif-

ference standard commonly applied in the Eighth

58a

Amendment prisoner-mistreatment context. See Turk-

men III, 915 F. Supp. 2d at 341 & n.13." Given the na-

ture of the MDC Plaintiffs’ “unofficial abuse” allegations,

premising liability on Hasty and Sherman’s deliberate

indifference is consistent with /qgba/’s holding that Bivens

defendants are liable only if, through their own actions,

they satisfy each element of the underlying constitutional

tort. See 556 U.S. at 676.

Prior to /qgbal, this Court recognized claims against a

supervisory defendant so long as the defendant was per-

sonally involved with the alleged constitutional violation.

In Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), this

Court identified five ways in which a plaintiff may estab-

lish a defendant’s personal involvement. One is through

a defendant’s “deliberate indifference.” /d. As the dis-

trict court explained, the fact that a particular type of

conduct constitutes “personal involvement” under Colon

does not inherently preclude the conduct from also sup-

porting a theory of direct liability. Turkmen 11], 915 F.

Supp. 2d at 335-36. For instance, plausibly pleading that

a defendant “participated directly in the alleged constitu-

tional violation”—one form of personal involvement enu-

merated in Colon, 58 F.3d at 873—could establish direct,

as opposed to vicarious, liability. The proper inquiry is

“ The deliberate indifference standard would clearly apply if the

MDC Plaintiffs had been prisoners entitled to the Eighth Amend-

ment’s protection against cruel and unusual punishment. See Walk-

er v. Schalt, 717 F.3d 119, 125 (2d Cir. 2013). Because a pretrial de-

tainee’s rights are at least as robust as those of a sentenced prisoner,

we have applied the Fighth Amendment deliberate indifference test

to pretrial detainees bringing claims under the Due Process Clause

of the Fifth Amendment. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99,

106 (2d Cir. 2000). We do not address whether civil immigration de-

tainees should be governed by an even more protective standard

than pretrial criminal detainees.

54a

not the name we bestow on a particular theory or stand-

ard, but rather whether that standard—be it deliberate

indifference, punitive intent, or discriminatory intent—

reflects the elements of the underlying constitutional

tort. See /gbal, 556 U.S. at 676 (“The factors necessary

to establish a Bivens violation will vary with the constitu-

tional provision at issue.”).

Our conclusion is consistent with /gbal, this Court’s

prior rulings, see Walker, 717 F.3d at 125, and the weight

of Circuit precedent. For instance, in Starr v. Baca, 652

F.3d 1202, 1206-07 (9th Cir. 2011), the Ninth Circuit de-

termined that /gbal does not preclude Bivens claims

premised on deliberate indifference when the underlying

constitutional violation requires no more than deliberate

indifference. See also Dodds v. Richardson, 614 F.3d

1185, 1204-05 (10th Cir. 2010); Sandra T.E. v. Grindle,

599 F.3d 583, 590-91 (7th Cir. 2010); Sanchez v. Pereira-

Castillo, 590 F.3d 31, 49 (1st Cir. 2009).

The MDC Plaintiffs’ “unofficial abuse” claim therefore

survives so long as Plaintiffs plausibly plead that the

conditions were sufficiently serious, and Hasty and

Sherman “kn{e]w of, and disregard[ed], an excessive risk

to inmate health or safety.” Walker, 717 F.3d at 125 (in-

ternal quotation marks omitted); accord Cwoco, 222 F.3d

at 107. The MDC Plaintiffs clearly meet this standard

with respect to Hasty. Simply stated, their factual alle-

gations permit the inference that he knew that MDC

staff subjected the MDC Plaintiffs to the “unofficial

abuses” and permitted—if not facilitated—the continua-

tion of these abuses. See Compl. 9924, 77-78, 107, 109-10.

For example, the Complaint contains allegations that

Hasty avoided evidence of detainee abuse by “neglecting

to make rounds on the ADMAX [SHU] unit,” as was re-

quired of him by BOP policy. /d. 124. The MDC Plain-

55a

tiffs also allege that Hasty was nonetheless made aware

of the abuse “through inmate complaints, staff com-

plaints, hunger strikes, and suicide attempts. ” TId.; see

oe id. 1977-78 (detailing how Hasty made it difficult for

detainees to file complaints and ignored the evidence

when they did, and how staff officials who complained

were called “snitches” and were threatened). Indeed,

complaints about abuse of 9/11 detainees were pervasive

enough to cause the BOP to videotape all detainee

movements and resulted in the investigations later de-

tailed in the OIG reports. /d. 1107. The MDC Plaintiffs

also complain that Hasty encouraged his subordinates’

harsh treatment of the detainees by himself referring to

the detainees as terrorists. /d. 1977, 109.

The allegations against Sherman, because they are

more general and conclusory in nature, are more tenu-

ous. For instance, Plaintiffs allege principally that

Sherman “allowed his subordinates to abuse MDC Plain-

tiffs and class members with impunity. Sherman made

rounds on the ADMAX SHU and was aware of conditions

there.” /d. 126. These allegations lack a specific factual

basis to support a claim that Sherman was aware of the

particular abuses at issue. Therefore, we hold that the

MDC Plaintiffs fail to plausibly plead an unofficial condi-

tions claim as to Sherman.”

3. Qualified Immunity

The MDC Defendants claim that qualified immunity is

appropriate because they were merely following the or-

ders of BOP superiors, “with the input and guidance of

the FBI and INS.” See, e.g., Hasty Br. 33. Specifically,

_

— — ——- - ———_

© The MDC Plaintiffs nonetheless maintain a substantive due pro-

cess claim against Sherman as to the official conditions, as discussed

supra.

56a

Hasty claims that the “BOP, INS, and FBI officials or-

dered |him] to place ‘high interest’ 9/11 detainees in the

ADMAX SHU, and directed that they be subject to the

‘tightest’ security possible.” /d. He further argues that

“(tlhe sole basis for the detainees’ confinement in the

ADMAX SHU—the FBI’s investigative interest—was

outside the scope of MDC officials’ discretion.” /d. at 35.

By extension, he claims that it was reasonable to detain

the MDC Plaintiffs and other “high interest” 9/11 detain-

ees in the ADMAX SHU.

These arguments fail. First, as with the DOJ Defend-

ants, our qualified immunity analysis in Hasty applies

with equal force to the MDC Plaintiffs’ conditions claim

against Hasty and Sherman in this case. See Hasty, 490

F.3d at 168-69. In 2001, it was clearly established that

punitive conditions of confinement, like those involved

here, could not be imposed on pretrial detainees such as

the MDC Plaintiffs. As discussed above with respect to

the DOJ Defendants, Wolfish made clear that a condition

of pretrial detention not reasonably related to a legiti-

mate governmental objective is punishment in violation

of the constitutional rights of detainees. See 441 U.S. at

535-39 & n.20; Hasty, 490 F.3d at 169. Furthermore, giv-

en the nearly identical claims and circumstances in Hasty

and this case, we see no reason to depart from our prior

determination that Hasty was not entitled to qualified

immunity.

Nor is Hasty entitled to qualified immunity with re-

gard to the unofficial conditions claim. As discussed, the

MDC Plaintiffs have plausibly alleged that Hasty per-

sonally violated their constitutional rights by knowing of,

and disregarding, an excessive risk to their health or

safety. The right of the MDC Plaintiffs to be free from

such unofficial abuse was clearly established at the time

57a

of the events in question. See, e.g., DeShaney v. Winne-

hago Cuty. Dep't of Soc. Servs., 489 U.S. 189, 200 (1989)

(“|W |hen the State by the affirmative exercise of its pow-

er so restrains an individual's liberty that it renders him

unable to care for himself, and at the same time fails to

provide for his basic human needs—e.g., food, clothing,

shelter, medical care, and reasonable safety—it trans-

sses the substantive limits on state action set by ...

the Due Process Clause.”); see also Walker, 717 F.3d at

125, 130; Cuoco, 222 F.3d at 106.

Plaintiffs’ allegations, the OIG Report, and the MDC

Defendants’ arguments confirm that Hasty and Sherman

housed 9/11 detainees for extended periods of time in

highly restrictive conditions without ever obtaining indi-

vidualized information that would warrant this treat-

ment. Because Plaintiffs’ allegations support an infer-

ence of punitive intent, and it would be inappropriate to

wrestle with competing factual accounts at this stage of

the litigation, we hold that a reasonable officer in the

MDC Defendants’ position would have concluded that

this treatment was not reasonably related to a legitimate

goal.

IV. CLAIM 2: EQUAL PROTECTION—CONDITIONS OF

CONFINEMENT

Plaintiffs next assert a claim that Defendants subject-

ed them to the harsh conditions of confinement detailed

above based on their race, ethnicity, religion, and/or na-

tional origin, in violation of the equal protection guaran-

tee of the Fifth Amendment.”

* All Plaintiffs assert an equal protection claim against the DOJ De-

fendants. Abbasi, Khalifa, Mehmood, and Bajracharya do not assert

this claim against Zenk, and Sachdeva and Turkmen do not make

this claim against any of the MDC Defendants.

58a

A. Applicable Legal Standard

To state an equal protection violation under the Fifth

Amendment, “the plaintiff must plead and prove that the

defendant acted with discriminatory purpose.” /qodal, 556

U.S. at 676. “[{PJurposeful discrimination requires more

than intent as volition or intent as awareness of conse-

quences.” /d. (internal quotation marks omitted). “It in-

stead involves a decisionmaker’s undertaking a course of

action because of, not merely in spite of, [the action’s] ad-

verse effects upon an identifiable group. Jd. at 676-77

(alteration in original) (internal quotation marks omit-

ted).

A plaintiff can show intentional discrimination by: (1)

“point[ing] to a law or policy that expressly classifies per-

sons on the basis of” a suspect classification; (2) “identi-

fy{ing| a facially neutral law or policy that has been ap-

plied in an intentionally discriminatory manner ;}” or (3)

“alleg{ing} that a facially neutral statute or policy has an

adverse effect and that it was motivated by discrimin-

atory animus.” Brown v. City of Oneonta, N.Y., 221 F.3d

329, 337 (2d Cir. 2000) (internal quotation marks omit-

ted).

The district court characterized Plaintiffs’ equal pro-

tection claim as falling within the first category—that is,

a claim that Defendants subjected Plaintiffs to the chal-

lenged conditions of confinement pursuant to a policy

that expressly classified Plaintiffs on the basis of their

race, ethnicity, religion, and/or national origin. Given our

reading of Plaintiffs’ allegations and arguments on ap-

peal, we will not analyze this claim, particularly as it re-

lates to the MDC Defendants, under the first equal pro-

tection theory alone.

59a

B. The DOJ Defendants

The district court concluded that Plaintiffs failed to

state an equal protection claim against the DOJ Defend-

ants, but “f{oujnd the issue to be a close one.” Turkmen

11], 915 F. Supp. 2d at 345. In view of our analysis of

Plaintiffs’ substantive due process claim against the DOJ

Defendants, and particularly these Defendants’ roles

with respect to the merger of the New York List, we hold

that the MDC Plaintiffs have adequately alleged an equal

protection claim against Ashcroft, Mueller, and Ziglar.

Plaintiffs’ well-pleaded allegations and the OIG Re-

port give rise to the following reasonable inferences,

which render plausible the MDC Plaintiffs’ equal protec-

tion claim against the DOJ Defendants: (1) the New York

FBI field office discriminatorily targeted individuals in

the 9/11 investigation not based on individualized suspi-

cion, but rather based on race, ethnicity, religion, and/or

national origin, and those individuals were then placed on

the New York List; (2) the DOJ Defendants knew about

the discriminatory manner in which the New York FBI

field office placed individuals on the New York List; and

(3) the DOJ Defendants condoned the New York FBI’s

discrimination by merging the New York List with the

INS List, thereby ensuring that some of the individuals

on the New York List would be subjected to the chal-

lenged conditions of confinement.

Plaintiffs allege that the New York FBI field office

targeted individuals in the PENTTBOM investigation

and placed them on the New York List based on race,

ethnicity, religion, and/or national origin. “[{T]Jhe head of

the New York FBI field office stated that an individual’s

Arab appearance and status as a Muslim were factors to

consider in the investigation.” Compl. 142. Even more

telling, a supervisor in the same local FBI office, “who

60a

oversaw the clearance process|,| stated that a tip about

Russian tourists filming the Midtown tunnel was ‘obvi-

ously’ of no interest, but that the same tip about Egyp-

tians was of interest.” /d. Individuals who were arrested

by the New York FBI and INS in connection with a

PENTTBOM lead were automatically treated as “of in-

terest,” OIG Report at 40-41, and were placed on the

New York List, see id. at 53.

This discriminatory approach, focusing on “an individ-

ual’s Arab appearance,” Compl. 142, is consistent with

what is alleged to have occurred in Bajracharya’s case.

Bajracharya, who as noted, is a Buddhist and native of

Nepal, came to the FBI's attention when an employee

from the Queens County District Attorney’s Office “ob-

served an ‘[A]rab male’ videotaping outside a Queens| |

office building that contained the Queens County District

Attorney[’s] Office and a New York FBI office.” /d.

1230. Investigators from the District Attorney’s Office

questioned Bajracharya about “why he was taking pic-

tures,” and Bajracharya “tried to explain that he was a

tourist.” /d. He was arrested after acknowledging he

overstayed his visa and was detained in the ADMAX

SHU. Given the Complaint’s allegations regarding the

New York FBI’s tactics, it is reasonable to infer that offi-

cials in the New York FBI targeted certain individuals,

including Plaintiffs, for investigation, arrest, and place-

ment on the New York List simply because they were, or

appeared to be, Arab or Muslim, and not because of any

suspicion regarding a link to terrorism.

As we conclude above with respect to the substantive

due process claim, the DOJ Defendants were informed of

the problems presented by the New York List. As noted,

the OIG Report reveals that by October 2001 the SIOC

Working Group learned about the New York List and

6la

that “officials at the INS, FBI, and [DOJ] raised con-

cerns about, among other things, whether the aliens had

any nexus to terrorism.” OIG Report at 53. Plaintiffs al-

lege that a high-ranking DOJ official noted that individu-

als were detained “without any attempt” to determine if

they were of “actual interest,” and that the official “was

concerned early in the investigation that detainees were

being held simply on the basis of their ethnicity.” Compl.

445. The DOJ Defendants were unlikely to have re-

mained unaware of these concerns, as they “received de-

tailed daily reports of the arrests and detentions,” id.

947, see also id. 1163-64, and Mueller “was in daily con-

tact with the FBI field offices regarding the status of in-

dividual clearances,” id. 157. In light of these allega-

tions, we can reasonably infer that these Defendants

were aware that the New York FBI field office was plac-

ing individuals on the New York List not because of any

suspected ties to terrorism but rather because they were,

or were perceived to be, Arab or Muslim.

While the DOJ Defendants’ mere knowledge of this

discriminatory action by the New York FBI field office

would be insufficient to allow for the reasonable inference

that these Defendants possessed the discriminatory pur-

pose required to state an equal protection claim, Plain-

tiffs’ allegations are not limited to the DOJ Defendants’

knowledge alone. Rather, as we discuss in detail in the

substantive due process analysis above, Plaintiffs plausi-

bly plead that Ashcroft made the decision to merge the

New York List with the national INS List, ensuring that

some of the individuals on the New York List would be

placed in, or remain detained in, the challenged condi-

tions of confinement. Plaintiffs further allege that

Mueller and Ziglar were aware that the New York List

contained detainees against whom the FBI had asserted

62a

no interest and that subjecting them to the challenged

conditions would be facially unreasonable. In ordering

and complying with the merger of the New York List, the

DOJ Defendants actively condoned the New York FB]

field office’s discriminatory formulation of that list.

The DOJ Defendants’ condonation of the New York

BI field office’s purposeful discrimination allows us to

reasonably infer at the motion to dismiss stage that the

DOJ Defendants themselves acted with discriminatory

purpose. The Supreme Court in Jgbal stated that “dis-

crete wrongs—for instance, beatings—by lower level

Government actors[] ... if true, and if condoned by

[Ashcroft and Mueller], could be the basis for some infer-

ence of wrongful intent on [Ashcroft and Mueller’s] part.”

556 U.S. at 683. In a similar vein, we have held, in a case

involving an equal protection claim under 42 U.S.C.

$1983, that a reasonable factfinder could conelude that

the Commissioner of the Fire Department of the City of

New York intended to discriminate when he decided to

continue to use the results of employment examinations

that he knew had a disparate impact based on race. See

United States v. City of New York, 717 F.3d 72, 94 (2d

Cir. 2013). Here, it is reasonable to infer that Ashcroft,

Mueller, and Ziglar possessed the requisite discriminato-

ry intent because they knew that the New York List was

formed in a discriminatory manner, and nevertheless

condoned that discrimination by ordering and complying

with the merger of the lists, which ensured that the MDC

Plaintiffs and other 9/11 detainees would be held in the

challenged conditions of confinement.

Contrary to the dissent’s contentions, see Dissenting

Op., post at 76-78, this case is distinguishable from Jgbal,

where the Supreme Court concluded that the plaintiff

failed to state an equal protection claim. In Iqbal, there

63a

were “more likely explanations” for why the plaintiff was

detained in harsh conditions other than his race, religion,

or national origin. 556 U.S. at 681. Those more likely

explanations for the plaintiff’s treatment, according to

the Supreme Court, were that Ashcroft and Mueller sup-

ported “a legitimate policy ... to arrest and detain indi-

viduals because of their suspected link to the attacks,”

which “produce[d] a disparate, incidental impact on Arab

Muslims, even though the purpose of the policy was to

target neither Arabs nor Muslims.” /d. at 682 (emphasis

added). The Supreme Court noted that “/o/n the facts

respondent alleges the arrests Mueller oversaw were

likely lawful and justified by his nondiscriminatory intent

to detain aliens who were illegally present in the United

States and who had potential connections to those who

committed terrorist acts.” Id. (emphasis added); see also

id. at 683 (noting that all the allegations in /gbal “sug-

gest{ed]| is that the Nation’s top law enforcement officers

... sought to keep suspected terrorists in the most secure

conditions available until the suspects could be cleared of

terrorist activity” (emphasis added)).

In this case, unlike in /qbal, it is not “more likely” that

the MDC Plaintiffs were detained in the challenged con-

ditions because of their suspected ties to the 9/11 attacks.

Indeed, as discussed at length earlier, Plaintiffs have

plausibly alleged that they were detained without any

suspicion of a link to terrorist activity and that the DOJ

Defendants knew that the government lacked infor-

mation tying Plaintiffs to terrorist activity, but decided to

merge the lists anyway.” Thus, unlike in /qbal, there was

" Given the clear language used by the Supreme Court in /yind re-

garding the detainees’ connections to terrerism, 556 U.S. at 682-83,

we understand the /qbal Court to have rejected as conclusory the al-

legation in the Jqgbal complaint identified by the dissent, which only

64a

no legitimate reason to detain the MDC Plaintiffs in the

challenged conditions and, thus, no obvious, more likely

explanation for the DOJ Defendants’ actions with respect

to the New York List merger.”

The dissent also argues that we cannot plausibly infer

the DOJ Defendants’ discriminatory intent from the

merger decision because not all of the individuals on the

New York List were subjected to the same level of re-

strictive confinement. See Dissenting Op., post at 79-80.

But the fact that some individuals of the same race, eth-

nicity, religion, and/or national origin as the MDC Plain-

tiffs were restrained in the Passaic County Jail, as op-

posed to the ADMAX SHU, hardly dooms the MDC

Plaintiffs’ claim against the DOJ Defendants. There is no

allegation that the DOJ Defendants were responsible for

the assignment of certain actual or perceived Arab and

Muslim males to Passaic as opposed to the more restric-

tive ADMAX SHU. See OIG Report at 17-18, 126-27, 158

pleads in the broadest terms that the /gbau/ plaintiffs were confined

without “any individual determination” that such restrictions were

“appropriate or should continue.” See Dissenting Op., post at 81-82

(quoting First Am. Compl. 197, App. to Pet. for Cert. (73a, Ax/erof?

v. fqbal, No. 07-1015 (us. Feb. 6, 2008), available at

http://Lusa.gov/ICMUJQF). Here, in contrast, the well-pleaded alle-

gations, as supported by the OIG reports, allege that the DOJ De-

fendants made, and complied with, the decisiun to merge the New

York List with the national INS List, thereby ensuring that the

MDC Plaintiffs, and others, remained in the chailenged conditions of

confinement despite the absence of any suspicion that they were tied

tu terrorism.

*“ Furthermore, the fact that Plaintiffs plausibly plead that the DOJ

Defendants merged the New York List, and complied with the list

merger, based on punitive intent (the substantive due process claim)

arguably suggests the plausibility of the MDC Plaintiffs’ allegations

that the DOJ Defendants also possessed the discriminatory intent

required for an equal protection claim. See swprrt Section LL.B.

65a

(noting that assignment responsibility fell largely to the

arresting FBI agent). Rather, Plaintiffs have plausibly

alleged that the DOJ Defendants condoned and ratified

the New York FBI’s discrimination in identifying de-

tainees by merging the New York List with the INS List.

The DOJ Defendants, apparently deferring to others’

designation of detainees for particular facilities, thus en-

sured that some (and for all they knew, all) of the indi-

viduals on the New York List would be subjected to the

challenged conditions of confinement solely on the basis

of discriminatory criteria. The fact that some of these

individuals were actually assigned to the less restrictive

Passaic facility is thus a red herring.”

Based on the foregoing, we conclude that the MDC

Plaintiffs’ allegations are sufficient to state an equal pro-

tection claim against Ashcroft, Mueller, and Ziglar for

their condonation of the New York FBI’s discriminatory

formulation of the New York List, which resulted in the

MDC Plaintiffs being subjected to the conditions of con-

finement challenged here.

* Moreover, to the extent this differential assignment of class mem-

bers, again apparently by agents of the New York FBI and not the

DOJ Defendants, might be relevant to Plaintiffs’ equal protection

claim, because it could suggest that the New York F'BI was not actu-

ally discriminating, it is more appropriately considered at summary

judgment. Indeed, the cases embraced by the dissent conclude that

evidence of differential treatment of members of the same class may

weaken an inference of discrimination at the swmmary judgment

stage. See O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308,

309 (1996) (summary judgment); Fleming v. MaxMara USA, Inc.,

371 F. App’x 115, 116 (2d Cir. 2010) (summary order) (summary

judgment); James v. N.Y. Racing Ass’n, 233 F.3d 149, 151 (2d Cir.

2000) (summary judgment). In light of the well-pleaded allegations

regarding discrimination by the New York FBI, Plaintiffs have hard-

ly pleaded themselves out of court on this point.

66a

C. The MDC Defendants

We agree with the district court that the MDC Plain-

tiffs have stated a plausible equal protection claim

against Hasty and Sherman, although we base our deci-

sion on somewhat different reasoning than that employed

by the court below. However, we do not agree with the

district court that the MDC Plaintiffs have adequately al-

leged this claim against Zenk.

Our conclusion focuses on allegations of mendacity by

Hasty and Sherman regarding the basis for detaining the

MDC Plaintiffs in the ADMAX SHU. The Complaint as-

serts that Hasty and Sherman “were aware that placing

the 9/11 detainees in the ADMAX SHU unit without an

individualized determination of dangerousness or risk

was unlawful.” Compl. 174. However, these Defendants

never actually undertook that “required individualized

assessment.” /d. 173. Nevertheless, Hasty and Sherman

approved a document that “untruthfully stated that the

executive staff at [the] MDC had classified the ‘suspected

terrorists’ as ‘High Security’ based on an individualized

assessment of their ‘precipitating offense, past terrorist

behavior, and inability to adapt to incarceration.’” /d.

174. In fact, neither Hasty nor Sherman “saw or consid-

ered information in any of these categories in deciding to

place the 9/11 detainees in the ADMAX SHU.” /d.;° see

also id. 9968-72 (Hasty and Sherman held the MDC

Plaintiffs in the ADMAX SIIU knowing that they were

not tied to terrorism and without performing the re-

” As previously noted, the term “9/11 detainees” is defined in the

Complaint as noncitizens from the Middle East, South Asia, and

elsewhere who are Arab or Muslim, or were perceived to be Arab or

Muslim. Individuals with certain of these characteristics who were

arrested and detained in response to the 9/11 attacks constitute the

putative class in this case.

67a

quired individualized assessment of whether Plaintiffs

posed a danger to the facility).

Based on the foregoing allegations of duplicity regard-

ing the basis for confining the 9/11 detainees, it is reason-

able to infer that Hasty and Sherman approved this false

document to justify detaining actual or perceived Arabs

and Muslims in the harsh conditions of the ADMAX SHU

based on discriminatory intent. Cf. Reeves v. Sanderson

Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (in the

employment discrimination context, “the trier of fact can

reasonably infer from the falsity of the explanation that

the employer is dissembling to cover up a discriminatory

purpose”); id. (an inference of discriminatory purpose

based on an employer’s false explanation “is consistent

with the general principle of evidence law that the fact-

finder is entitled to consider a party’s dishonesty about a

material fact as affirmative evidence of guilt” (internal

quotation marks omitted)); St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 511 (1993) (“disbelief of the reasons

put forward by the defendant (particularly if disbelief is

accompanied by a suspicion of mendacity) may ... show

intentional discrimination” in the employment discrimi-

nation context).

The dissent argues that we cannot infer discriminato-

ry intent from the MDC Defendants’ approval of this

false documc t, concluding that the “more likely” reason

for this mer acity is these Defendants’ concern for na-

tional security. See Dissenting Op., post at 83-84. Al-

though recognizing that the MDC Defendants might be

faulted for approving a false document stating that each

detainee had been assessed as a “High Security” “sus-

pected terrorist| |,” our dissenting colleague believes

Hasty and Sherman’s actions are more likely explained

by reliance on the FBI’s designation of each MDC Plain-

68a

tiff as a person “of interest” or “of high interest” to the

ongoing terrorism investigation. Yet, the allegations in

the Complaint belie this alternative explanation for Has-

ty and Sherman’s dishonesty. Plaintiffs allege that the

“MDC Defendants were aware that the FBI had not de-

veloped any information” to tie the 9/11 detainees to ter-

rorism. Compl. 169 (emphasis added). Indeed, the MDC

Defendants received regular updates on the FBI’s inves-

ligation, including the dearth of evidence connecting the

9/11 detainees to terrorism. Such briefing—placing Has-

ty and Sherman on repeated notice of the lack of any spe-

cific information justifying restrictive confinement in the

ADMAX SHU—renders implausible the innocent expla-

nation for their mendacity.

As an additional matter, the fact that the false docu-

ment that Hasty and Sherman approved, on its face, ap-

plied to suspected terrorists and not just actual or per-

ceived Arabs and Muslims does not undermine the rea-

sonableness of the inference that these Defendants acted

based on discriminatory intent. Plaintiffs allege that

Hasty and Sherman approved the document even though

they had not performed the required individualized as-

sessments and knew that keeping “the 9/11 detainees” in

the ADMAX SHU without those assessments was unlaw-

ful. Jd. 1973-74. They further allege that, in approving

the document, Hasty and Sherman failed to consider the

past offenses, past terrorist activity, and inability to

adapt to incarceration with respect to “the 9/11 detain-

ees.” Jd. 474. Based on Plaintiffs’ allegations about how

the false document related in particular to the 9/11 de-

tainees, a group the Complaint specifically defines on ra-

cial, ethnic, and religious grounds, see id. 11, it is reason-

able to infer, at least at the motion to dismiss stage, that

69a

Hasty and Sherman lied in order to conceal an intent to

discriminate on the basis of suspect classifications.

Further buttressing this inference, the Complaint as-

serts that MDC staff used racially, ethnically, and reli-

giously charged language to refer to the MDC Plaintiffs.

See id. 1109 (MDC staff referred to the MDC Plaintiffs

as terrorists and insulted their religion); id. 1110 (Saeed

Hammouda and others complained “that MDC staff

called them ‘camel{s|’”); id. 1136 (MDC staff mocked

Plaintiffs’ prayers and interrupted their praying by

“screaming derogatory anti-Muslim comments”); id.

¢218 (during his transport and processing Hammouda

was called “Arabic asshole”). These allegations are sup-

ported by the OIG reports. See OIG Report at 144 (not-

ing allegations that MDC officers used racial slurs); Sup-

plemental OIG Report at 28-30 (concluding that some

MDC staff verbally abused detainees based on their Mus-

lim faith, among other grounds).

The context in which the term “terrorist” was used at

the MDC bolsters the inference that the MDC Plaintiffs

were believed to be terrorists simply because they were,

or were perceived to be, Arab or Muslim. Significantly,

the term “terrorist” was not used in isolation. Rather,

MDC staff called the MDC Plaintiffs “‘fucking Muslims’

and ‘terrorists,’” Compl. 1147, as well as “‘terrorist’ and

‘Arabic asshole,” id. 1218; see also Supplemental OIG

Report at 28 (noting that along with the term “terror-

ists,” MDC staff referred to detainees as “fucking Mus-

lims” and “bin Laden Junior” (internal quotation marks

omitted)).

While most of the aforementioned comments are not

directly attributed to Hasty, Sherman, or Zenk, Plaintiffs

do allege that the use of racially, ethnically, and religious-

ly charged language was brought to the attention of the

70a

MDC Defendants through detainee complaints and re-

ports from MDC staff, among other means. Mere

knowledge of the MDC staff’s discriminatory comments,

of course, is insufficient to infer shared discriminatory in-

tent by Hasty, Sherman, or Zenk. See /qbal, 556 U.S. at

676-77. However, with respect to Hasty, Plaintiffs allege

more than mere awareness of the MDC staff’s discrimi-

natory treatment of the MDC Plaintiffs. Plaintiffs claim

that Hasty fostered the MDC staff’s use of discriminato-

ry language to refer to the MDC Plaintiffs by himself

“referring to the detainees as ‘terrorists,’”” Compl. 9477,

see also id. 1109, notwithstanding Hasty’s knowledge

that the MDC Plaintiffs lacked ties to terrorism. Hasty’s

knowledge about the charged manner in which the term

“terrorist” was used to refer to the MDC Plaintiffs, and

his personal use of the term in that context, renders even

more plausible the conclusion that he approved the false

document justifying the MDC Plaintiffs’ detention in the

ADMAX SHU based on discriminatory animus. Given

the fact that the 9/11 hijackers were Arab Muslims, and

Hasty knew that there were no articulable ties between

the MDC Plaintiffs and terrorism, Plaintiffs plausibly

plead that Hasty referred to the MDC Plaintiffs as ter-

rorists, and treated them as if they were, simply because

they were, or he believed them to be, Arab or Muslim.

In view of the foregoing, the MDC Plaintiffs have

stated a plausible claim that Hasty and Sherman de-

tained them in the challenged conditions because of their

race, ethnicity, religion, and/or national origin. These

Defendants’ approval of the false document, and Hasty’s

use of charged language in the particular context of the

MDC Plaintiffs’ detention, support the reasonable infer-

ence that Hasty and Sherman subjected the MDC Plain-

Tla

tiffs to harsh conditions of confinement based on suspect

classifications.

With respect to Zenk, the MDC Plaintiffs’ allegations

are more limited and fail to support the reasonable infer-

ence that he established or implemented the alleged con-

ditions of confinement based on animus that offends no-

tions of equal protection.

D. Qualified Immunity

The DOJ Defendants, Hasty, and Sherman are not en-

titled to qualified immunity on the MDC Plaintiffs’ equal

protection claim. With regard to the first prong of this

inquiry, whether the complaint plausibly pleads that a de-

fendant personally violated the plaintiff’s constitutional

rights, for the reasons stated above, the MDC Plaintiffs

have plausibly alleged that Ashcroft, Mueller, Ziglar,

Hasty, and Sherman violated their rights under the equal

protection guarantee.

With respect to the second prong of the inquiry, it was

clearly established at the time of Plaintiffs’ detention that

it was illegal to hold individuals in harsh conditions of

confinement and otherwise target them for mistreatment

because of their race, ethnicity, religion, and/or national

origin. Plaintiffs’ right “not to be subjected to ethnic or

religious discrimination| |] wias] ... clearly established

prior to 9/11, and .. . remained clearly established even in

the aftermath of that horrific event.” Hasty, 490 F.3d at

160. In Hasty, the plaintiff alleged “that he was deemed

to be ‘of high interest,’ and accordingly was kept in the

ADMAX SHU under harsh conditions, solely because of

his race, ethnicity, and religion,” and “that Defendants

specifically targeted [him] for mistreatment because of

[his] race, religion, and national origin.” /d. at 174 (alter-

ations in original). We concluded “that any reasonably

competent officer would understand [those alleged ac-

72a

tions] to have been illegal under prior case law.” /d. (in-

ternal quotation marks omitted). There is no reason that

this analysis should not govern here. Although, as the

dissent notes, see Dissenting Op., post at 62, Hasty em-

ployed a more lenient pleading standard than what we

now utilize in assessing factual allegations, this hardly

prevents us from relying on its conclusions as to whether

certain legal principles were clearly established at the

time of Plaintiffs’ detention. Accordingly, in view of the

sufficiency of the MDC Plaintiffs’ allegations here, the

DOJ Defendants, Hasty, and Sherman are not entitled to

qualified immunity on this claim.

We reverse the portion of the district court’s decision

that dismissed the MDC Plaintiffs’ equal protection claim

against the DOJ Defendants, affirm the district court’s

denial of Hasty and Sherman’s motions to dismiss the

MDC Plaintiffs’ claim, and reverse the district court’s de-

cision denying Zenk’s motion to dismiss the equal protec-

tion claim.

Because the Passaic Plaintiffs were held in the general

populat'on and not the ADMAX SHU, we agree with the

district court that they have failed to adequately plead

that they were subjected to harsh conditions of confine-

ment because of their race, ethnicity, religion, and/or na-

tional origin. Thus, we affirm the district court’s dismis-

sal of the Passaic Plaintiffs’ equal protection claim.

VY. CLAIM 6: UNREASONABLE AND PUNITIVE STRIP

SEARCHES

The MDC Plaintiffs claim that they were subject to

unreasonable and punitive strip searches while detained

73a

at the MDC, in violation of the Fourth and Fifth

Amendments.”

A. Applicable Legal Standard

Determining the legal standard that applies to this

claim turns on whether the MDC Plaintiffs were held in a

prison or a jail. See Hasty, 490 F.3d at 172. In Hasty,

we decided that the plaintiff, who was detained in the

ADMAX SHU at the MDC (like the MDC Plaintiffs

here), should be treated in accordance with the standard

governing prisons. See id. Under that standard, a

“regulation is valid if it is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89

(1987). Given that the parties here do not argue for a dif-

ferent standard, we assume that the foregoing standard

applies in this case.”

B. The MDC Defendants

The MDC Plaintiffs allege that Defendant Joseph Cu-

citi, a former lieutenant at the MDC and not a party on

“ Only the MDC Plaintiffs assert this claim, which is only raised

against the MDC Defendants. Benatta and Hammouda alone assert

this claim against Zenk. To the extent that the MDC Plaintiffs’ alle-

gations regarding the strip searches are cognizable under the Fifth

Amendment, we factor these allegations into our analysis of the sub-

stantive due process claim, which is discussed above. See supra Sec-

tion [IL.C.

“ We note, however, that this standard governs prison regulations,

see Trrner, 482 U.S. at 89, and that the application of this standard

in Hasty may have been justified because the plaintiff in that case

faced criminal charges (apparently felonies), see 490 F.3d at 147-48

& n.1, 162 n.8, 172. In contrast, Plaintiffs here were almost exclu-

sively charged with civil immigration violations and were detained on

that basis. While it may be that a different standard, one more fa-

vorable to detainees, should govern the constitutionality of searches

in the context of civil immigration detention, we leave that question

for another day.

74a

appeal, was tasked with “developing the strip search pol-

icy on the ADMAX [SHU].” Compl. 7111. Plaintiffs fur-

ther claim that “Hasty ordered ... Cuciti to design ex-

tremely restrictive conditions of confinement.” /d. 975.

The reasonable inference based on these allegations is

that Hasty ordered Cuciti to develop the strip-search pol-

icy, which was “then approved and implemented by Has-

ty and Sherman, and, later, by Zenk.” /d.

Plaintiffs allege that the 9/11 detainees at the MDC

were strip searched upon arrival, and again after they

had been escorted in shackles and under continuous

guard to the ADMAX SHU. They were also strip

searched every time they were taken from or returned to

their cells, including after non-contact attorney visits,

when “physical contact between parties was prevented

by a clear partition,” OIG Report at 123, and when being

transferred from one cell to another. Benatta was strip

searched on September 23, 24, and 26 of 2001, even

though he was not let out of his cell on any of those days.

Numerous strip searches were documented in a “visual

search log” that was created for review by MDC man-

agement, including Hasty. Compl. 4114 (internal quota-

tion marks omitted).

Plaintiffs’ allegations regarding the strip searches are

supported by the Supplemental OIG Report, which con-

eluded that MDC staff “inappropriately used strip

searches to intimidate and punish detainees.” Supple

mental OIG Report at 35. That report also “questioned

the need for the number of strip searches, such as after

attorney and social visits in non-contact rooms.” /d.

The foregoing allegations, supported as they are by

the Supplemental OIG Report, are sufficient to establish

at this stage of the litigation that Hasty and Sherman

were personally involved in creating and executing a

75a

strip-search policy that was not reasonably related to le-

gitimate penological interests. Hasty ordered the policy,

and both he and Sherman approved and implemented it.

Under that policy, the MDC Plaintiffs were strip

searched when there was no possibility that they could

have obtained contraband. Plaintiffs have alleged that

Hasty and Sherman were aware of these searches either

based on the search log that was created for review by

MDC management, or because they were involved in the

implementation of the strip-search policy.“ These allega-

tions give rise to a plausible Fourth Amendment claim

against Hasty and Sherman. See Hasty, 490 F.3d at 172

(finding a plausible allegation of a Fourth Amendment

violation in the post-9/11 context where the plaintiff al-

leged that he “was routinely strip searched twice after

returning from the medical clinic or court and that, on

one occasion, [he] was subjected to three serial strip and

body-cavity searches in the same room”); Hodges v. Stan-

ley, 712 F.2d 34, 35 (2d Cir. 1983) (noting that because

“there was no possibility that [the plaintiff] could have

obtained and concealed contraband|| ... the second

search appears to have been unnecessary”).

“ To the extent the dissent believes that we premise Hasty and

Sherman's personal involvement entirely on these Defendants’ al-

leged review of the visual search log, see Dissenting Op., post at 90,

that assertion is incorrect. As discussed, Plaintiffs have plausibly al-

leged that Hasty ordered the development of, and that he and Sher-

man approved and implemented, the challenged strip-search policy.

Plaintiffs’ allegations regarding the visual search log only buttress

the inference of Hasty’s personal involvement.

“ Although the dissent correctly notes that Hodges was decided be-

fore the Supreme Court's opinion in Turner, see Dissenting Op., post

at 88, we have ratified Hodges in subsequent strip search case law.

See Hasty, 490 F.3d at 172; N.G. v. Connecticut, 382 F.3d 225, 233-34

(2d Cir. 2004). Similarly, we reject the dissent’s attempt to confine

Hodges to its facts, only finding the absence of a legitimate penologi-

76a

With respect to Zenk, however, the MDC Plaintiffs fail

to state a plausible Fourth Amendment claim. As noted

earlier, Plaintiffs do not assert any claim against Zenk

for injuries they suffered prior to the date on which he

became Warden of the MDC, which was April 22, 2002.

Only two Plaintiffs, Benatta and Hammouda, were still

detained at the MDC as of that date. These Plaintiffs

have not sufficiently alleged that they were unlawfully

strip searched during the period in which Zenk was War-

den of the MDC.

C. Qualified Immunity

Hasty and Sherman are not entitled to qualified im-

munity on the MDC Plaintiffs’ strip search claim. With

respect to the first prong of the qualified immunity anal-

ysis, Plaintiffs have plausibly alleged that Hasty and

Sherman each violated the MDC Plaintiffs’ rights under

the Fourth Amendment. With regard to the second

prong of the inquiry, Plaintiffs’ Fourth Amendment

rights were clearly established at the time of the search-

es at issue.

In Hasty, we denied Hasty qualified immunity on the

plaintiff’s Fourth Amendment claim, stating that in the

wake of 9/11 “it was clearly established that even the

standard most favorable to prison officials required that.

strip and body-cavity searches be rationally related to le-

cal purpose where the strip searches are “immediately successive.”

Dissenting Op., post at 88 (emphasis added). Like previous panels,

we read Hodges as holding that a search may be unnecessary and

purposeless where “there was no possibility that [the plaintiff] could

have obtained and concealed contraband.” 712 F.2d at 35; see aiso

N.G., 382 F.3d at 233-34. Here, consistent with Hodges, Plaintiffs

have plausibly alleged that they were strip searched when there was

no opportunity to acquire contraband, including in instances where

they were shackled and under escort, or were never permitted to

leave their cells.

77a

gitimate government purposes.” 490 I°.3d at 172; see also

id. at 159-60 (the “right not to be needlessly harassed and

mistreated in the confines of a prison cell by repeated

strip and body-cavity searches” was “clearly established

prior to 9/11, and . . . remained clearly established even in

the aftermath of that horrific event”). Because the MDC

Plaintiffs’ claim here is substantially the same as the

Fourth Amendment claim at issue in Hasty, we are

bound by that decision and thus deny Hasty and Sher-

man qualified immunity on the Fourth Amendment claim

in this case.

Accordingly, we affirm the district court’s denial of

Hasty and Sherman’s motions to dismiss the MDC Plain-

tiffs’ Fourth Amendment strip search claim, and reverse

the district court’s denial of Zenk’s motion to dismiss this

claim.

VI. CLAIM 7: CONSPIRACY UNDER 42 U.S.C. § 1985

Plaintiffs’ final claim is that Defendants conspired to

deprive them of their rights in violation of 42 U.S.C.

§ 1985(3).

A. Applicable Legal Standard

A conspiracy claim under Section 1985(3) has four el-

ements: “(1) a conspiracy, (2) for the purpose of depriving

any person or class of persons of the equal protection of

the laws or of equal privileges and immunities under the

laws, (3) an act in furtherance of the conspiracy, and (4)

whereby a person is injured in his person or property or

deprived of a right or privilege of a citizen.” Hasty, 490

F.3d at 176." In addition, this claim requires that “there

“ Section 1985(3) of Title 42 of the United States Code provides, in

pertinent part, that:

If two or more persons in any State or Territory conspire .. .

for the purpose of depriving, either directly or indirectly, any

78a

must be some racial, or perhaps otherwise class-based,

invidiously discriminatory animus behind the conspira-

tors’ action.” Griffin v. Breckenridge, 403 U.S. 88, 102

(1971); accord Reynolds v. Barrett, 685 F.3d 193, 201-02

(2d Cir. 2012).

B. The Sufficiency of the Allegations

In this case, the MDC Plaintiffs have sufficiently al-

leged that Ashcroft, Mueller, and Ziglar met regularly

and eventually agreed to subject the detainees to the

challenged conditions of confinement by merging, and

complying with the merger of, the New York List. The

MDC Plaintiffs have also plausibly alleged that the DOJ

Defendants’ actions with respect to the New York List

merger were based on the discriminatory animus re-

quired for a Section 1985(3) conspiracy claim, as we con-

clude above in our analysis of the equal protection claim.

With respect to Hasty and Sherman, their joint approval

of the false document without performing the requisite

individualized assessment supports the reasonable infer-

ence that these two Defendants came to an agreement to

and did subject Plaintiffs to harsh conditions of confine-

ment based on the discriminatory animus required by

Section 1985(3).

Plaintiffs also allege an agreement, albeit not an ex-

plicit one, among the DOJ Defendants and Hasty and

Sherman to effectuate the harsh conditions of confine-

ment with discriminatory intent. Such a tacit agreement

person or class of persons of the equal protection of the laws,

or of equal privileges and immunities under the laws; . . . if one

or more persons engaged therein do, or cause to be done, any

act in furtherance of the object of such conspiracy, . . . the par-

ty so injured er deprived may have an action for the recovery

of damages occasioned by such injury or deprivation, against

any one or more of the conspirators.

79a

can suffice under Section 1985(3). See Webb v. Goord,

340 F.3d 105, 110-11 (2d Cir. 2003). The Complaint as-

serts that the conditions of confinement at the MDC

“vere formulated in consultation with the FBI.” Compl.

465. In addition, Hasty ordered, and Hasty and Sher-

man approved and implemented, the conditions of con-

finement “[t]o carry out Ashcroft, Mueller[,| and Ziglar’s

unwritten policy to subject the 9/11 detainees to harsh

treatment.” /d. 175; see also id. 168. The foregoing al-

legations are sufficient to support the reasonable infer-

ence that the DOJ Defendants, Hasty, and Sherman

shared such a tacit understanding about carrying out the

unlawful conduct with respect to the MDC Plaintiffs’ de-

tention.

Accordingly, the MDC Plaintiffs’ allegations state a

plausible claim for a Section 1985(3) conspiracy against

Ashcroft, Mueller, Ziglar, Hasty, and Sherman.

C. The Intracorporate Conspiracy Doctrine

The MDC Defendants argue that they are legally in-

capable of conspiring with each other, and with the DOJ

Defendants, because they are all part of the same gov-

ernmental entity—the DOJ. In Girard v. 94th Street &

Fifth Avenue Corp., 5380 F.2d 66, 70-72 (2d Cir. 1976), we

recognized that the defendants—officers and directors of

a single corporation, and the corporation itself—could not

legally conspire with one another in violation of Section

1985(3). We reached that conclusion because the defend-

ants formed a “single business entity with a managerial

policy implemented by the one governing board.” J/d. at

71. Thus, the defendants could not satisfy the statutory

requirement of a conspiracy between two or more per-

sons. /d. We also noted, however, that where various en-

tities in a single institution have “disparate responsibili-

ties and functions,” a conspiracy claim could lie because

80a

the actions of those entities would not be “actions of only

one policymaking body.” /d.

Assuming that Defendants can ultimately invoke the

intracorporate conspiracy doctrine in this case, at this

stage of the litigation, we cannot conclude that Ashcroft,

Mueller, Ziglar, Hasty, and Sherman acted as members

of a single policymaking entity for purposes of the MDC

Plaintiffs’ Section 1985(3) conspiracy claim. According to

the Complaint, the former Attorney General, the former

Director of the FBI, the former Commissioner of the

INS, and the former Warden and Associate Warden at

the MDC had varied responsibilities and functions that

distinguish them from the single corporate entity in

Girard. Although Hasty and Sherman may have acted,

at least in part, to implement the DOJ Defendants’ poli-

cy, it is also the case that Hasty and Sherman themselves

established policies at the MDC. Thus, factual questions

about how disparate or distinct Defendants’ functions

were, and how policy was created by the various Defend-

ants, preclude us from deciding as a matter of law that

Defendants resemble the single policymaking body of a

corporation.“

D. Qualified Immunity

The DOJ Defendants, Hasty, and Sherman are not en-

titled to qualified immunity on this claim. First, the

-_——

” We note that the BOP and, therefore, the MDC, are subject to the

supervision of the Attorney General. See 18 U.S.C. $4041. We have

also found one unpublished district court decision that concludes that

the Attorney General and employees of a BOP facility eannot con

spire together under Section 1985. Sce Chesser v. Waltow, No.

12-cv-01198-J PG, 2013 WL 1962285, at *3 (S.D. Lil. May 10, 2013).

However, for the reasons stated above, neither this statutory provi-

sion nor district court ease satisfy us that Defendants here were suf

ficiently similar to the members of a single corporate policymaking

bedy such that the intracorporate conspiracy doctrine should apply.

Sla

MDC Plaintiffs have plausibly alleged a Section 1985(3)

conspiracy claim against these Defendants. In addition,

as we concluded in Hasty, in the wake of the 9/11 attacks,

“even without a definitive ruling from this Court on the

application of section 1985(3) to federal officials, federal

officials could not reasonably have believed that it was

legally permissible for them to conspire with other feder-

al officials to deprive a person of equal protection of the

laws.” 490 F.3d at 177. In that case, we denied the de-

fendants qualified immunity on the Section 1985(3) claim.

See id. Given the sufficiency of the allegations in this

ease, our qualified immunity decision in Hasty controls

here.

Accordingly, we reverse the district court’s dismissal

of the Section 1985(3) claim against the DOJ Defendants

and affirm the denial of Hasty and Sherman’s motions to

dismiss this claim. Because the MDC Plaintiffs fail to

adequately plead that Zenk acted with discriminatory an-

imus, we reverse the denial of Zenk’s motion to dismiss

the conspiracy claim. This claim is also dismissed with

respect to the Passaic Plaintiffs, as they fail to adequate-

ly plead that Defendants acted with the requisite discrim-

inatory animus.

VII. FINAL THOUGHTS

If there is one guiding principle to our nation it is the

rule of law. It protects the unpopular view, it restrains

fear-based responses in times of trouble, and it sanctifies

individual liberty regardless of wealth, faith, or color.

The Constitution defines the limits of the Defendants’ au-

thority; detaining individuals as if they were terrorists, in

the most restrictive conditions of confinement available,

simply because these individuals were, or appeared to be,

Arab or Muslim exceeds those limits. It might well be

that national security concerns motivated the Defendants

82a

to take action, but that is of little solace to those who felt

the brunt of that decision. The suffering endured by

those who were imprisoned merely because they were

caught up in the hysteria of the days immediately follow-

ing 9/11 is not without a remedy.

Holding individuals in solitary confinement twen-

ty-three hours a day with regular strip searches because

their perceived faith or race placed them in the group

targeted for recruitment by al Qaeda violated the detain-

ees’ constitutional rights. To use such a broad and gen-

eral basis for such severe confinement without any fur-

ther particularization of a reason to suspect an individu-

al’s connection to terrorist activities requires certain as-

sumptions about the “targeted group” not offered by De-

fendants nor supported in the record. It assumes that

members of the group were already allied with or would

be easily converted to the terrorist cause, until proven

otherwise. Why else would no further particularization

of a connection to terrorism be required? Perceived

membership in the “targeted group” was seemingly

enough to justify extended confinement in the most re-

strictive conditions available.

Discovery may show that the Defendants—the DOJ

Defendants, in particular—are not personally responsible

for detaining Plaintiffs in these conditions. But we simp-

ly cannot conclude at this stage that concern for the safe-

ty of our nation justified the violation of the constitutional

rights on which this nation was built. The question at

this stage of the litigation is whether the MDC Plaintiffs

have plausibly pleaded that the Defendants exceeded the

bounds of the Constitution in the wake of 9/11. We be-

lieve that they have.

83a

CONCLUSION

For the foregoing reasons, we affirm in part and re-

verse in part the district court’s decision on Defendants’

Rule 12(b)(6) motions. More specifically, we conclude

that: (1) the MDC Plaintiffs have plausibly alleged a sub-

stantive due process claim against the DOJ Defendants,

against Hasty with regard to both official and unofficial

conditions, and against Sherman with regard to official

conditions only, and these Defendants are not entitled to

qualified immunity on this claim; (2) the MDC Plaintiffs

have plausibly alleged an equal protection claim against

the DOJ Defendants, Hasty, and Sherman, and these De-

fendants are not entitled to qualified immunity on this

claim; (3) the free exercise claim is dismissed as to all De-

fendants; (4) the MDC Plaintiffs have plausibly alleged

their Fourth Amendment strip search claim against Has-

ty and Sherman, and these Defendants are not entitled to

qualified immunity on this claim; (5) the MDC Plaintiffs

have plausibly alleged the Section 1985(3) conspiracy

claim against the DOJ Defendants, Hasty, and Sherman,

and these Defendants are not entitled to qualified im-

munity on this claim; and (6) the MDC Plaintiffs have not

plausibly alleged any claims against Zenk. We affirm the

dismissal of the claims brought by the Passaic Plaintiffs.

The Clerk of the Court is directed to enter an order

consistent with these conclusions, AFFIRMING in part

and REVERSING in part, and REMANDING the mat-

ter to the district court for further proceedings con-

sistent with this opinion.

RAGGI, Circuit Judge, concurring in part in judgment

and dissenting in part:

Today, our court becomes the first to hold that a

Bivens action can be maintained against the nation’s two

84a

highest ranking law enforcement officials—the Attorney

General of the United States and the Director of the

Federal Bureau of Investigation (“FBI”)—for policies

propounded to safeguard the nation in the immediate af-

termath of the infamous al Qaeda terrorist attacks of

September 11, 2001 (“9/11”).' I respectfully dissent from

this extension of Bivens to a context not previously rec-

ognized by Supreme Court or Second Circuit precedent.

I do not suggest that executive action in this, or any oth-

er, context is not subject to constitutional constraints. I

conclude only that when, as here, claims challenge official

executive policy (rather than errant conduct by a rogue

official—the typical Bivens scenario), and particularly a

national security policy pertaining to the detention of il-

legal aliens in the aftermath of terrorist attacks by aliens

operating within this country, Congress, not the judici-

ary, is the appropriate branch to decide whether the de-

tained aliens should be allowed to sue executive policy-

makers in their individual capacities for money damages.

Even if a Bivens action were properly recognized in

this context—which I subm

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