Appendix — Ashcroft v. Turkmen, 137 S. Ct. 293 (2016) (No. 15-1359)

oun, US.

FILED

15-1399 ty gil

ICE OF THE CLERK

In the Supreme Court of the Gnited States

JOUN D. ASHCROFT, FORMER ATTORNEY GENERAL

OF THE UNITED STATES, AND ROBERT MUELLER,

FORMER DIRECTOR OF THE FEDERAL BUREAU

OF INVESTIGATION, PETITIONERS

v.

IBRAHIM TURKMEN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

DONALD B. VERRILLI, Jk.

Solicitor Genera!

Counsel of Record

BENJAMIN ©. MIZER

Principal Deputy Assistant

Attorney General

IAN HEATH GERSHENGORN

Deputy Solicitor General

CURTIS BE. GANNON

Assistant to the Solicitor

General

DOUGLAS N. LETTER

BARBARA L, HERWIG

H. THOMAS BYRON II!

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj. gov

(202) 514-2217

a

TABLE OF CONTENTS

Page

Appendix A Court of appeals opinion

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Appendix B — District court opinion

I 164a

Appendix C — Court of appeals order denying

rehearing (Dec. 11, 2015)................c00000 237a

Appendix D Fourth Amended Complaint

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(T)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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

I@RAHIM TURKMEN, AKHIL SACHDEVA, AHMER [QBAL

Aprasl, ANSER MEHMOOD, BRENAMAK BENATTA,

AHMED KHALIFA, SAEED HAMMOUDA, AND PURNA

BAJRACHARYA, ON BEHALF OF THEMSELVES AND ALL

OTHERS SIMILARLY SITUATED,

PLAINTIFFS-APPELLEES-CROSS-APPELLANTS

v.

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 MURLLER, 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*

Argued: May 1, 2014

Decided: June 17, 2015

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

forth above.

(la)

Before: POOLER, RAGGI, and WESLEY, Circuit

Judges.

POOLER and WESLEY, Cire’ 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

people on American soil. Ashcroft v. Iqbal (Iqbal), 556

U.S. 662, 682, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009).

This case raises a difficult and delicate set of legal issues

concerning individuals who were caught up in the

post-9/11 investigation even though they were unques-

tionably 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 Deten-

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

Passaic County Jail (“Passaic”) in Paterson, New Jersey;

their individual detentions generally ranged from ap-

proximately 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 “F'BI”) Robert Mueller; former Com-

missioner of the Immigration and Naturalization Service

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

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

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

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

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

nanimmigrant status (often by overstaying his visa) in the United

States and is deportable.

3a

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.

BACKGROUND

I. Procedural History*®

Plaintiffs initiated this action over thirteen years

ago on April 17, 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 1), 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 IT), 589 F.3d 542 (2d Cir. 2009) (per curiam),

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

* For ease of reference, we refer to Ashcroft, Mueller, and Ziglar

collectively as the “Department of Justice DOJ") Defendants,” and

Husty, 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

distriet cyurt’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 dismissed pursuant to Federal Rule of Appellate Procedure

3i(c). Thus, we do not address the claims against Cuciti and Lo-

presti.

* Fer a more comprehensive review of this case’s procedural

history, see Turkmew «. Ashcroft (Turkmen 111), 915 F, Supp. 2d

314, 331-38 (E.D.N_LY. 2013).

4a

Plaintiffs and Defendants appealed various aspects of that

ruling.

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 II, 589 F.3d at 544 n.1, 545.

This left only [brahim Turkmen and Akhil Sachdeva, both

of whom were detained at Passaic, as opposed to the

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

at 662, 129 S. Ct. 1937, which altered the pleading regime

governing Plaintiffs’ claims. In light of these events and

the remaining Plaintiffs’ stated desire to replead claims

unique to the settling Plaintiffs, this Court affirmed the

dismissal of the length of detention claims but vacated

and remanded with respect to the conditions of confine-

ment claims. See Turkmen I/, 589 F.3d at 546-47, 549-50.

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 Muslim,

or were perceived by Defendants as Arab or Muslim, and

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

tacks.‘

* Benamar Benatta was originally detained by Canadian authori

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

false documentation. Following the September 11 attacks, Ben-

5a

The Complaint dramatically winnowed the relevant

claims and defendants; it alleges seven claims against

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

suant to Bivens v. Six Unknown Named Agents of Fed-

eral Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29

L.. Ed. 2d 619 (1971), are: (1) a conditions of confinement

claim under the Due Process Clause; (2) an equal protec-

tion claim alleging that Defendants subjected Plaintiffs to

the challenged conditions because of their, or their per-

ceived, 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 coun-

sel; and (6) a claim under the Fourth and Fifth Amend-

ments alleging unreasonable and punitive strip searches.

The seventh and final claim alleges a conspiracy under 42

U.S.C. § 1985(3). The DOJ 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.

Il. 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 reports”)’

atta was transported back to the United States and detained in the

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

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

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

June 2003, covers multiple aspects of law enforeement’s response

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

The September 1! Detainees: A Review of the Treatment of Ali-

ens Held on Immigration Charges in Connection with the Investi-

6a

that documented the federal law enforcement response to

9/11 and conditions at the MDC and Passaic.

The OIG reports, which the Complaint “incorporate|sj

by reference except where contradicted by the allegations

of [the Complaint],” Compl. 9 3 n.1, see also id. 4 5 n.2,

play a significant role in this case.“ Primarily, the OIG

reports provide invaluable context for the unprecedented

challenges following 9/11 and the various strategies fed-

—_

gation of the September Il Attacks (April 2003) (the “OIG Re-

port”), available at http://www.justice.gov/oig/special/0300/ full. pdf.

The second OIG report, published in December 2003, focuses on

abuses at the MDC. See U.S. Dep't of Justice, Office of the In-

spector General, Supplemental! Report on September 11 Detainecs’

Allegations of Abuse at the Metropolitan Detention Center in

Brooklyn, New York (Dec. 2003) (the “Supplemental OIG Report”),

avaiable ef http:/Avww justice.gov/oig/special/03 | 2/final pdf.

* Various Defendants challenge the district court’s decision to

consider the OIG reports to the extent that they are not contradic-

ted by the Complaint. Defendants are correct that a complaint

“include[s} any written instrument attached to it as an exhibit or

any stutements or documents incorporated in it by reference.”

Cortec ludus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.

1991); accord DiFolco v. MSNBC Cable L.L.C., F.3d 104, 111

(2d Cir. 2010). But their objection misses the point. The district

court accurately explained that at the pleading stage, although we

must consider the words on the page (that is, we cannot disregard

the fact that the OIG reports make particular findings), we need

not consider the truth of those words to the extent disputed by

Plaintiffs. See Turkmen III, 915 F. Supp. 2d at 342 n.14 (citing

DiFolco, 622 F.3d at 111). Even were we to view the OIG reports

as fully incorporated, reliance on any assertion of fact requires a

credibility assessment that we are fundamentally unsuited to un-

dertake at the Rule 12(b\j) stage. And although the OIG reports

cannot determinatively prove or disprove Plaintiffs’ allegations,

they remain relevant to our analysis because they supplement our

understanding of the law enforcement response to 9/11.

7a

eral agencies employed to confront these challenges.

The reports help orient our analysis of the Complaint.

Ill. Plaintiffs’ Allegations’

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

other agencies within the DOJ immediately initiated an

immense investigation aimed at identifying the 9/11 per-

petrators and preventing any further attacks. See OIG

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

Towers Bombings investigation, was initially run out of

the FBI’s field offices, but shortly thereafter, Mueller

ordered that management of the investigation be

switched to the F'BI’s Strategic Information and Opera-

tions Center (the “SIOC”) at FBI Headquarters in

Washington, D.C. Mueller personally directed PENTT-

BOM from the SIOC and remained in daily contact with

FBI field offices.

In conjunction with PENTTBOM, the Deputy Attor-

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

SIOC Working Group to coordinate “efforts among the

various components within the [DOJ] that had an inves-

tigative interest in{,] or responsibility for[,] the Septem-

ber 11 detainees.” /d. at 15." The SIOC Working Group

included representatives from, among other agencies, the

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

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

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

‘ The allegations set forth herein are drawn from the Complaint

and those portions of the OTG reports incorporated by reference.

See suprt note 6. We presume the veracity of Plaintiffs’ well-

pleated allegations. /gbai, 586 U.S. at 679, 129 S. Ct. 1937.

* The SIOC Working Group acquired this name because its initial

meetings occurred at the FBI’s SIOC.

Sa

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 nationals,

the DOJ response carried a major immigration law com-

ponent. See id. at 12. Ashcroft and Mueller developed

“a policy whereby any Muslim or Arab man encountered

during the investigation of a tip received in the 9/11 ter-

rorism investigation ... and discovered to be a

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

arrested.” Compl. 4 1; see also id. 1% 39-49. 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 [FBI Headquarters!

affirmatively cleared them of terrorist ties.” /d. 4 2; 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.”

* For instance, Turkmen came to the FBI’s attention when his

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

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

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

didn’t call.’” Compl. 1 251. “The FBI knew that her only basis

for suspecting these men was that they were Middle Eastern;

indeed, she reported that they were good tenants, and paid their

rent on time.” /d. Another alien was arrested after the FBI

received a tip that stated that the small grocery store where he

worked was overstaffed, thus arousing the tipster’s suspicions

about the “Middle Eastern men” that worked there. OIG Report

at 17.

9a

“Mueller [nonetheless] ordered that every one of these

tips be investigated, even if they were implausible on their

face.” Compl. 1 40. Ultimately, 762 detainees were

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

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

policy.

In the months following 9/11, the DOJ Defendants

“received detailed daily reports of the arrests and deten-

tions.” /d. 147. Ashcroft and Mueller also “met regu-

larly with a small group of government officials in Wash-

ington, D.C., and mapped out ways to exert maximum

pressure on the individuals arrested in connection with

the terrorism investigation.” Jd. 9 61."° This small

group “discussed and decided upon a strategy to restrict

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

delay their immigration hearings. The group also de-

cided to spread the word among law enforcement per-

sonnel that the 9/11 detainees were suspected terrorists| |

and that they needed to be encouraged in any way

possible to cooperate.” Jd.

‘’ Tt is unclear whether this “small group” refers to the SIOC

Working Group or a distinct group involving Ashcroft, Mueller, and

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

Plaintiffs are referring to the small group that consisted of Ash-

croft, Muclier, Michael Chertoff, who was then Assistant Attorney

General of the Criminal Division, and the Deputy Attorney Gen-

eral. See OIG Report at 13. According to Chertoff, this group

discussed the DOJ's post-9/11 law enforcement strategy and poli-

cies. Given the makeup of this group and the SIOC Working

Group, it is reasonable to infer that information flowed between

them; for instance, Chertoff's deputy, Alice Fisher, was placed in

charge of immigration issves for the Criminal Division and person-

ally established the SLOC Working Group.

10a

Plaintiffs, with the exception of Turkmen and Sach-

deva, were held at the MDC. Under MDC confinement

policy, 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. 76. The confinement policy

was created by the MDC Defendants “in consultation with

the FBI.” Jd. 965.

Conditions 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. 9 5; “strip-

searched every time they were removed from or returned

to their cell{s], ... even when they had no conceivable

opportunity to obtain contraband,” id. 1 112; provided

with “meager and barely edible” food, id. 1 128; denied

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

24 hours a day, id. 1 119, and, “{[oJn some occasions, cor-

rectional officers walked by every 20 minutes throughout

the night, kicked the doors to wake up the detainees, and

yelled” highly degrading and offensive comments, id.

{| 120; constructively denied recreation and exposed to the

elements, see id. 11 122-23; “denied access to basic hy-

giene items like toilet paper, soap, towels, toothpaste,

[and] eating utensils,” id. 1 130; and prohibited from

moving around the unit, using the telephone freely, using

the commissary, or accessing MDC handbooks, which ex-

plained how to file complaints about mistreatment, see id.

11 76, 83, 129, 140.

lla

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 inappropriate

ways. See id. 1 105; see also Supplemental OIG Report

at 8-28. MDC staff also referred to the 9/11 detainees as

“‘terrorists, and other offensive names; threaten|ed]

them with violence; curs|[ed] at them; insult[ed] their re-

ligion; and ma[de] humiliating sexual comments during

strip-searches.” Compl. 1 109. Specifically, Plaintiffs

and putative class members at the MDC were referred to

by staff as “camel[s],” “fucking Muslims,” and “Arabic

asshole[s],” zd. 11 110, 147, 218.

The MDC Plaintiffs did not receive copies of the Koran

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. 97 133. 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. 9 136.

The named MDC Plaintiffs’ individual experiences—

several of which are highlighted below—add further

texture to their collective allegations concerning the

arrest and confinement of the 9/11 detainees.

12a

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 im-

migration 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. 1 157. 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 Ahmer Abbasi,

her brother. Mehmood convinced the FBI to arrest him

instead of Uzma because their son was still breastfeeding.

“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. 11 159.

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. 4 162. “His left hand was broken during this inci-

dent” and “[t]he guards threatened to kill him if he asked

any questions.” Jd. His experience in the ADMAX

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

13a

“(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.” /d. 1 166. 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.” Jd. 1195. On September 30, 2001,

FBI, INS, and officers from the New York City Police

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.” /d. 1196. After

searching the apartment, the agents asked Khalifa for his

passport and “if he had anything to do with September

11.” Jd. 1 197. 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

arrested 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

l4da

wall, pushed and kicked by MDC officers and placed into

a wet cell, with a mattress on the floor.” Jd. % 201.

“|His] wrists were cut and bruised from his handcuffs,

and he was worried about other detainees, whom he heard

gasping and moaning through the walls of his cell.” /d.

FBI and INS agents interviewed Khalifa on October 7,

2001. One of the agents apologized to Khalifa after no-

ticing the bruises on his wrists. When Khalifa stated

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

was because he was Muslim.” /d. 4 202. In notes from

the interview, the agents did not question Khalifa’s credi-

bility, and noted no suspicion of ties to terrorism or in-

terest 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. § 203. 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 FBI 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,

l5a

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

money home to his wife and sons in Nepal. Having

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

Bajracharya 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]Jrab

male’ videotaping outside a Queens| | office building that

contained the Queens County District Attorney[’s] Office

and a New York FBI office.” /d. 1 230. 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 visa.

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.

11 233-34. 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. 9 235. Bajra-

charya 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 sus-

picion 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 clear-

l6a

ance. Documents at FBI Headquarters note that the

FBI had no interest in Bajracharya by mid-November

2001. Nonetheless, he was not released from the AD-

MAX SHU until January 138, 2002. The FBI agent as-

signed 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 5'3” 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 duce 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.” Jd. 4 241.

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

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 Sep-

tember 22, 2001 order instructed agents to “exercise

17a

sound judgment” and to limit arrests to those aliens in

whom the FBI had an “interest” and discouraged arrest

in eases that were “clearly of no interest in furthering the

investigation of the terrorist attacks of September 11th.”

Jd. 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 clearance

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. Specifieally, 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 ... regard-

less of the strength of the evidence or the origin of the

lead.” Jd. at 41; see also Compl. 91 43-45. For instance,

days after 9/11, New York City police stopped three Mid-

dle Kastern men in Manhattan on a traffic violation and

found plans to a public school in the ear. The next clay,

their employer confirmed that the men had the plans

because 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

‘ll. 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

lXa

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 en-

countered and arrested pursuant to a PENTTBOM lead

in New York were designated “of interest” (or special

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 national INS

List. One explanation for maintaining a separate New

York List was that the New York FBI could not determine

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

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

Report does not identify how many New York arrests were the

result of the New York 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 independ-

ence from their headquarters in Washington, D.C. See OIG Re-

port at 54.

1Y¥a

if the detainees had any connection with terrorist activity.

Id. at 54.

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

occasions 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 unwittingly

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 remain de-

tained in the challenged conditions of confinement as if

there were some suspicion that those individuals 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 process

conditions of confinement claim (Claim 1); equal protec-

tion conditions of confinement claim (Claim 2); free exer-

cise claim (Claim 3); unreasonable strip search claim

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

(Claim 7). See Turkmen III, 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"

1. Pleading Standard

To satisfy /qbal’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, 129 S. Ct.

1937. Although plausibility is not a “probability require-

ment,” Plaintiffs must allege facts that permit “more than

a sheer possibility that a defendant has acted unlawfully.”

/d. (internal quotation marks omitted). Factual allega-

tions that are “merely consistent with” unlawful conduct

do not create a reasonable 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 enti-

tlement to relief.” /d. at 679, 129 S. Ct. 1937. Ulti-

mately, 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

‘ 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).

Zla

Court in Bivens, 403 U.S. at 388, 91 S. Ct. 1999. During

the course of this litigation, the Supreme Court made it

clear in /gbal that a federal tortfeasor’s Bivens liability

cannot be premised on vicarious liability. 556 U.S. at 676,

129 S. Ct. 19387. Thus, Plaintiffs must plausibly plead

that each Defendant, “through the official’s own individu-

al 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, 129 S. Ct. 1987. IJgbal

precludes relying on a supervisor’s mere knowledge of a

subordinate’s mental state (7.e., discriminatory or punitive

intent) to infer that the supervisor shared that intent.

Id. at 677, 129 S. Ct. 1937. not enough. But that is not

to say that where the supervisor condones or ratifies a

subordinate’s discriminatory or punitive actions the

supervisor is free of Bivens’s reach. See id. at 683, 129

S. Ct. 1937.

Il. Availability of a Bivens Remedy for Plaintiffs’ 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 counsel

on appeal, they have chosen to not offer that argument

now as a further defense of their victory in the district

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

225 n.4 (citing Lotes Co. v. Hon Hai Precision Indus. Co.,

22a

753 F.3d 395, 413 (2d Cir. 2014)), we think it appropriate to

explain our conclusion that a Bivens remedy is 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, 91 S. Ct. 1999, the Supreme

Court. “recognized for the first time an implied private

action for damages against federal officers alleged to have

violated a citizen’s constitutional rights.” Corr Servs.

Corp. v. Malesko, 534 U.S. 61, 66, 122 S. Ct. 515, 151

L. Ed. 2d 456 (2001). “The purpose of Bivens is to deter

individual federal officers from committing constitutional

violations.” Jd. at 70, 122 S. Ct. 515. 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)

(internal quotation marks omitted). Thus, a byvens rem-

edy is not available for all who allege injury from a federal

officer’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

extend Bivens into a “new context.” Jd. 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 reme-

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

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

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

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

limited guidance regarding how to determine whether a

claim presents a new context for Bivens purposes. Thus,

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

23a

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-

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

terrorist attack.” Sherman Br. 45. The DOJ Defend-

ants made a similar argument before the district court in

an earlier round of this litigation. See Turkmen 1, 2006

WL 1662663, at *80. The MDC Defendants, and the dis-

sent on behalf of the DOJ Defendants, contend that Arar

supports 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 ter-

rorism, 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

determined this presented a new context for Bivens-

based claims. /d. Only upon concluding that extraor-

dinary rendition presented a new context did we examine

the policy concerns and competing remedial measures

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

Bivens 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 pre-

sent the “context” of their confinement—just as the rea-

son for Arar’s extraordinary rendition did not present the

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

rivaled challenges and severe exigencies—but that does

not change the “context” of Plaintiffs’ claims. “{MJost of

24a

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 to ethnic or reli-

gious discrimination. The strength of our system of con-

stitutional rights derives from the steadfast protection of

those rights in both normal and unusual times.” Jqbal v.

Hasty (Hasty), 490 F.3d 148, 159 (2d Cir. 2007), rev'd on

other grounds sub nom. Iqbal, 556 U.S. 662, 129 S. Ct.

1937.

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

facility, 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 in-

—

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

recognized Bivens context. This Circuit has presumed the availa-

bility of a Bivens remedy for substantive due process claims in sev-

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

eases). In addition, the Supreme Court has acknowledged the

availability of “a Bivens action to redress a violation of the equal

protection component of the Due Process Clause of the Fifth

Amendment.” J/qbal, 556 U.S. at 675, 129 S. Ct. 1937 (citing Davis

v. Passman, 442 U.S. 228, 99 8. Ct. 2264, 60 L. Ed. 2d 846 (1979)).

And while it is true that the Supreme Court has subsequently de-

clined to extend Davis to other employment discrimination claims,

such as in Chappell v. Wallace, 462 U.S. 296, 300-04, 103 S. Ct.

2362, 76 L. Ed. 2d 586 (1983), the Court’s analysis was focused on

the special nature of the employer-employee relationship in the

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

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

plainly available.

25a

jury (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

confinement. In Carlson v. Green, 446 U.S. 14, 17-20, 100

S. Ct. 1468, 64 L. Ed. 2d 15 (1980), the Supreme Court

recognized an implied remedy for the plaintiff’s claim

alleging an Kighth Amendment violation for prisoner

mistreatment. Furthermore, in Malesko, in refusing to

extend a Bivens remedy to claims against private corpo-

rations 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, 122 S. Ct. 515. “If a federal

prisoner in a BOP facility alleges a constitutional depri-

vation, he may bring a Bivens claim against the offending

individual officer, subject to the defense of qualified im-

munity.” /d. The Court went on to recognize that the

“prisoner may not bring a Bivens claim against the of-

ficer’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 re-

sponsible for subjecting the Plaintiffs to punitive condi-

tions of confinement.

The Second Cireuit has also recognized the availability

of Bivens relief for federal prisoners housed in federal

facilities bringing claims against individual federal offic-

ers. In Thomas v. Ashcroft, 470 F3d 491, 497 (2d Cir.

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

26a

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 deprivation 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 either that a

Bivens remedy was unavailable or that its availability

would constitute an unwarranted extension of the Bivens

doctrine.” Avray 585 EF3d 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 bane), 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 E3d 352, 372-75 (3d Cir. 2012) (assuming

availability of a Bivens remedy for plaintiff’s Fifth

Amendment substantive due process and other constitu-

tional claims challenging his conditions of confinement).

Notwithstanding the persuasive precedent suggesting

the availability of a Bivens remedy for the MDC Plain-

tiffs’ conditions of confinement claims, the MDC Defen-

dants, 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-

27a

finement. is coextensive with that of a citizen, their un-

lawful presence in the United States at the time of the

challenged confinement does not place their standard

mistreatment claim into a new context. Indeed, the Fifth

‘ireuit nas recognized a Bivens claim raised by a Mexican

national for violations of her Fourth and Fifth Amend-

ment rights to be free from false imprisonment and the

use of excessive force by law enforcement personnel. See

Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir.

2006). The Ninth Circuit has also recognized a Bivens

claim for due process violations that occurred 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 available for the Plain-

tiffs’ substantive due process and equal protection condi-

tions 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 time-

ly 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. Indeed,

‘© We note that the Ninth Circuit has declined to provide illegal

aliens with an implied Bivens remedy for wnlawful detention dur-

ing deportation proceedings. Mirmehdi v. United States, 689

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

inappusite here where the MDC Plaintiffs do not challenge the fact

that they were detained, but rather the conditions in which they

were detained.

28a

the Supreme Court has “not found an implied damages

remedy under the Free Exercise Clause” and has “de-

clined to extend Bivens to a claim sounding in the First

Amendment.” /qbal, 556 U.S. at 675, 129 S. Ct. 1937

(citing Bush v. Lucas, 462 U.S. 367, 103 S. Ct. 2404, 76 L.

Ed. 2d 648 (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 sub-

jected to unlawful strip searches falls within an estab-

lished Bivens context: federal detainee plaintiffs, housed

in a federal facility, allege that individual federal officers

subjected them to unreasonable searches in violation of

the Fourth Amendment. The MDC Defendants fail to

persuasively 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, 91 S. Ct. 1999; see also Groh v. Ramirez,

540 U.S. 551, 555, 124 S. Ct. 1284, 157 L. Ed. 2d 1068

(2004) (recognizing the availability of a Bivens remedy 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 ree-

ognized by this Circuit. Indeed, in Arar, we stated that

29a

“(jJn the small number of contexts in which courts have

implied a Bivens remedy, it has often been casy to identify

both the line between constitutional and unconstitutional

conduct, and the alternative course which officers should

have pursued. ... [T]he immigration officer who sub-

jected 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,

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.

lil. Claim 1: Substantive Due Process Conditions of

Confinement

The MDC Plaintiffs allege that the harsh conditions

of confinement in the MDC violated their Fifth Amend-

ment substantive due process rights and that all De-

‘’ 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 faetors counsel hesitation in creating

a Birens remedy.” Are, 585 F.3d at 572 (internal quotation

marks and brackets omitted).

30a

fendants are liable for this harm." Plaintiffs present

distinet theories of liability as to the DOJ and MDC De-

fendants.

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, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979)."”

Plaintiffs must plausibly plead that Defendants, (1) with

punitive intent, (2) personally engaged in conduct that

caused the challenged conditions of confinement. See id.

at 538, 99 S. Ct. 1861; see also Iqbal, 556 U.S. at 676-77,

129 8S. Ct. 1987. Absent “an expressed intent to punish,”

Wolfish, 441 U.S. at 538, 99 S. Ct. 1861, we may only infer

that Defendants acted with punitive intent if the chal-

lenged conditions were “not reasonably related to a le-

gitimate goal—if [they were] arbitrary or purpuseless,”

id. at 539, 99'S. Ct. 1861.

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-/qbal assertions that “the former

Attorney General and FBI Director did not themselves

require or specify any of the particular conditions set

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

substantive due process conditions of confinement claim or unrea-

sonable strip search claim (Claims J and 6).

The parties have not argued for a different standard in this ap

peal. Accordingly, we do not address whether the rights of civil

immigration detainees should be governed by a standard that is

even more protective than the standard that applies to pretrial

criminal] detainees.

sla

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

what amounts to a theory of respondeat superior for the

actions of others who may have imposed those condi-

tions.” Asheroft & 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 /qbal, the DOJ Defendants were “enti-

tled 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 IIT, 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 detainees

would be held, without direction from the FBI or else-

where). The MDC Plaintiffs similarly fail to plead that

Ashcroft’s initial arrest and detention mandate required

subordinates to apply excessively restrictive conditions to

civil detainees against whom the government lacked in-

dividualized suspicion of terrorism. Given the mandate’s

facial validity, the DOJ Defendants had a right to presume

that subordinates would carry it out in a constitutional

manner. See Al-Jundi v. Estate of Rockefeller, 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

32a

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

Plaintiffs would continue to be confined in punitive condi-

tions. This is sufficient to plead a Fifth Amendment

substantive due process violation.”*' Given the lack of

™ The dissent counters that “|t}his is not apparent in the record,”

citing Plaintiff Bajracharya’s videotaping of u building in Queens as

evidence of that Plaintiff's possible tie to terrorism. Dissenting

Op., post at 283 n.28. The dissent makes nu mention, of course, of

Plaintiff Khalifa, whe was teld that Che FBI was only interested in

his roommates, but who was arrested und then detained in the

ADMAX SHU anyway, Compl. { 197; or of Plaintiff Mehmood, who

was arrested and detained in the ADMAX SHU in place of his wife,

in whom the FBI had apparently expressed interest, but who was

still breastfeeding their son, id. 1159. The dissent further claims

that detainees were not sent to the ADMAX SHU based on their

perceived race or religion, but- -as Lhe OIG Report states—hbased

on whether they were designated of “high interest” to the PENTT.

BOM investigation. Dissenting Op., post at 283 n.28 (citing OG

Report at 18, 111) But, as the dissent concedes, id. Plaintiffs’

well-pleaded Complaint specifically contradicts this point: the

MDC Pluintiffs were detained in the ADMAX SHU “even though

they had not been classified ‘high interest," Compl. { 4.

* We acknowledge, as the dissent points out, that the MDC

Plaintiffs dit not advance the “lists merger theory” betore this

Court or the district court. Dissenting Op., post at 283 1.28. Ra

ther, they structured the Complaint to challenge Asheroft’s arrest

and detention mandate as initially formulated and generally ap-

plied. In examining the Complaint’s sufficiency, we have been

33a

individualized suspicion, the decision to merge the lists

was not “reasonably related to a legitimate goal.” See

Wolfish, 441 U.S. at 589, 99 S. Ct. 1861. The only reason

why the MDC Plaintiffs were held as if they were sus-

pected of terrorism 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 |D |efendants were even

aware of [the] conditions,” Turkmen 11, 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, inéer alia, that

Mueller ran the 9/11 investigation out of FBI Headquar-

ters; and that “Ashcroft, Mueller{,| and Ziglar received

detailed daily reports of the arrests and detentions,”

Compl. 9 47; see also id. 1% 63-65.

The OIG Report makes plain the plausibility of Plain-

tiffs’ allegations. The “{DOJ} was aware of the BOP’s

decision to house the September 11 detainees in high-

security sections in various BOP facilities.”. OIG Report

at 19. The Deputy Chief of Staif to Asheroft told the OIG

that an allegation of mistreatment was called to the At-

torney General’s attention. /d. at 20. And BOP Direec-

tor Kathy Hawk Sawyer stated that in the weeks follow-

ing 9/11, the Deputy Attorney General’s Chief of Staff and

8

clear that the pleadings are inadequate to challenge the validity o!

the policy ab initio, but do state a claim with regard to the merger

decision, an event that Plaintiffs explicitly reference in the Com-

plaint. See Compl. % 47; Pls.’ Br. 38. Sufficiency analysis re-

quires a careful parsing uf the Complaint and that is all that has

occurred here.

34a

the Principal Associate Deputy Attorney General “called

her ... with concerns about detainees’ ability to com-

municate 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 restrictive

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 conditions

imposed, but affirmatively supported them. See also 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 be-

gan to receive media attention soon after detentions

began, see id. at 2, 5;* thus, it seems implausible that the

public’s concerns did not reach the DOJ Defendants’

desks.

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

claiming that communications about a condition of confinement that

was lifted before the merger decision cannot support an inference

as to what the DOJ Defendants knew about the conditions in the

ADMAX SHU. Dissenting Op., post at 288-89. Simply put, we

disagree. The fact remains that 2 condition of confinement, less

severe and abusive than the conditions at issue here, garnered the

attention of senior officials; it stands to reason that conditions that

kept detainees in their cells for twenty-three hours a day, denied

them sleep by bright lights, and involved excessive strip searches

and physical abuse, would have come to the DOJ Defendants’ at-

tention.

* See, e.g., Neil A. Lewis, A Nation Challenged: The Detainees;

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

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

nation-challenged-the-detainees-detentions-after-attacks-pass- 1000

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

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

35a

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.”

* Furthermore, the OIG reports were issued pursuant to the Of-

fice of the Inspector General’s responsibilities under the USA

PATRIOT Act, which was enacted on October 26, 2001. See OIG

Report at 3 1.6. The PATRIOT Act, Section 1001, reads: “The

Inspector General of the Department of Justice shall designate one

official who shall—(1) review information and receive complaints

alleging abuses of civil rights and civil liberties by employees and

officials of the Department of Justice.” PATRIOT Act, Pub. L.

No. 107-56, § 1001, 115 Stat. 272 (2001). “On October 30, 2001, the

OIG reviewed a newspaper article in which a September 11 detain-

ee alleged he was physically abused when he arrived at the MDC

on October 4, 2001. Based on the allegations in the article, the

OIG’s Investigations Division initiated an investigation into the

matter.” OIG Report at 144. It seems to us most plausible that

if the O1G—-who is “under the authority, direction, and control of

the Attorney General with respect to audits or investigations,” 5

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

at the MDC, the DOJ Defendants were as well.

36a

2. Lack of Individualized Suspicion

The MDC Plaintiffs also plausibly plead that the

DOJ Defendants were aware that the FBI had not de-

veloped any connection between some of the detainees

and terrorist activities. The Complaint and OIG Report

both make clear that the New York FBI arrested all

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

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.

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

were nonetheless sent to the MDC’s ADMAX SHU. For example,

“Abbasi, Bajracharya, Mehmood, and Khalifal | were placed in the

ADMAX SHU even though they had not been classified ‘high inter-

est’ and despite the absence of any information indicating they

were dangerous or involved in terrorism, or any other legitimate

reason for such treatment.” Compl. 9 4.

37a

Compl. #67. Plaintiffs point to the detailed daily reports

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.” Jd. 9 47.

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 per-

sons 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 detentions—to

Ashcroft, indicating that he too was aware of the lack of

individualized suspicion. /d. 4 64.

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

detainees held in the challenged conditions of confine-

ment. The OIG Report states that “[a|] variety of INS,

FBI, and [DOJ] officials who worked on the[ ] September

11 detainee 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 terror-

ism in general. /d. at 47.

The O1G Report supports the reasonable inference

that this information, known by other DOJ officials, came

to the attention of the DOJ Defendants. In particular,

38a

the OIG Report specifies that Ashcroft and Mueller were

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

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

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

Furthermore, the OIG 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. Jd. 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 “officials at the

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

things, whether the aliens had any nexus to terrorism.”

/d. at 58. Clearly this created a major problem for the

DOJ. The existence of the New York List suddenly

presented the possibility of more than doubling the num-

ber 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 terrorist connec-

tions) about the problem of the New York List and the

hundreds of detainees picked up in contravention of Ash-

croft’s stated policy. Indeed, it seems to us implausible

they did not. Finally, the OIG Report once again makes

clear that media reports regarding allegations of mis-

treatment of detainees alleged that detainees remained in

detention even though they had no involvement in ter-

rorism. /d. at 2, 5.

ae Pe

** In October and November of 2001, the New York List con-

tained approximately 300 detainees while the INS List for the rest

of the nation contained only 200 detainees. OIG Report at 54.

39a

3. The Decision to Merge the Lists

Plaintiffs plausibly plead that, despite the DOJ De-

fendants’ knowledge of the conditions at the ADMAX

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

large number of those detainees on the New York List,

Asheroft 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

various internal sources. The Complaint clearly alleges

that “{algainst significant internal criticism from INS

agents and other federal employees involved in the

sweeps, Ashcroft ordered that, despite a complete lack of

any information 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 inter-

est.’” Compl. 147. By taking this action, Ashcroft en-

sured that some of the individuals on the New York List

would be placed in, or remain detained in, the challenged

conditions of confinement.

Our dissenting colleague levels a concern as to the

import of the merger of the lists and counters that noth-

ing 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 284. 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.

40a

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

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 General

may not have been questioned is confirmation that he

knew nothing. The reports make no such assertion.

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 Plain-

tiffs 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

Ala

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

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

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

sider other views before making the decision. Because

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

officials.”

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.” Jd. at 62. It

seems to us that if Levey was not comfortable changing

the CIA check policy without input from more senior

officials, he certainly would not have been comfortable

making the decision on his own to double the number of

detainees subject to that policy in the first instance.”

” The OIG Report states that Levey specifically consulted David

Laufman, the Deputy Attorney General’s Chief of Staff. OIG Re-

port at 62. The dissent takes this as definitive proof that Ashcroft

was not consulted on this, or the merger, decision. Dissenting

Op., post at 284-85. 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 deci-

sion, 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 merging the lists would have on that process and said that

42a

The dissent argues that the OIG Report forecloses the

plausibility of the allegation that Levey brought the

list-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 285 (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

communicated at the November 2 meeting. Thus, surely

it is plausible that Levey consulted with more senior

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

“based on these and other contacts with senior Department offi-

cials, he believed the Department was fully aware” of the INS’s

concerns. O1G Report at 66-67. This also suggests that Levey

had communicated those concerns to Ashcroft, who nonetheless

made the decision to merge the lists.

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

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

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

See Dissenting Op., posi at 285-86 (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 sen-

ior officials, including Ashcroft, before communicating a decision at

that November meeting. Indeed, one would think that Levey

would not attend the November 2 meeting without knowing its

agenda.

*” The dissent challenges the sufficiency of Plaintiffs’ allegations

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

post at 285. Of course, Plaintiffs have no way of knowing what

Levey and Ashcroft discussed; nor do we. /qbal 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

43a

course, discovery may show that Levey was solely re-

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

whether Plaintiffs’ allegations support the inference that

the decision was Ashcroft’s; they do.

The MDC Plaintiffs’ allegations against Mueller and

Ziglar are also sufficient. The Complaint alleges, inter

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.”

Jompl. 1 47; see also 2d. 11 55-57, 67. Mueller and Ziglar

are not exculpated from this claim merely because Plain-

tiffs allege that they complied with, as opposed to or-

dered, 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

facially 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

execution of his superior’s orders if those orders are

facially invalid or clearly illegal. See, eg. 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 deci-

sion was facially invalid; it would be unreasonable for

Mueller and Ziglar to conclude that holding ordinary civil

detainees under the most restrictive conditions of con-

finement available was lawful.

ultimately responsible for the decision. 556 U.S. at 678, 129 S. Ct.

1937. We believe that Plaintiffs have met this burden.

A4a

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

intent—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 admitted. The Supreme Court has noted that it

can be inferred if the conditions of confinement are “not

reasonably related to a legitimate goal.” Wolfish, 441

U.S. at 539, 99S. Ct. 1861. 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

attacks—and not some animus directed at the MDC

Plaintiffs. They seem to imply that once “national secu-

rity” concerns become a reason for holding someone,

there is no need to show a connection between those con-

cerns and the captive other than that the captive shares

common traits of the terrorist: illegal immigrant status

and a perceived 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 Muslim males—that was targeted for recruit-

ment by al Qaeda that they could be held in the ADMAX

SHU without any reasonable suspicion of terrorist activ-

ity. Dissenting Op., post at 291-92, 295-97. Under this

view, the MDC Plaintiffs were not held with punitive in-

Ada

tent, because there was no way to know that they were not

involved in terrorist activities. Simply being in the

LInited States illegally and being, or appearing to be,

Arab or Muslim was enough to justify detention in the

most restrictive conditions of confinement available. In-

deed, Levey admitted that the decision to merge the lists,

ensuring 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.

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

individual was considered a possible threat to national

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

Arabs 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—

Arab or Muslim.

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

ally problematic—that the enforcement of our immigra-

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

impact on Arab Muslims.” Jqbal, 556 U.S. at 682, 129

5. Ct. 1937. And we do not contend that Supreme Court,

or our own, precedent requires individualized suspicion to

subject detainees to generally restrictive conditions of

confinement; restriction is an incident of detention.

Rather, we simply acknowledge that “if a restriction or

condition is not reasonably related to a legitimate goal—if

46a

it is arbitrary or purposeless—a court permissibly

may infer that the purpose of the governmental action is

punishment that may not constitutionally be inflicted

upon detainees qua detainees.” Wolfish, 441 U.S. at 539,

99 S. Ct. 1861. 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 returned to their

cells, denying them sleep by bright lights—-were not rea-

sonably related to a legitimate goal, but rather were

punitive and unconstitutional.

While national security concerns could justify detain-

ing those individuals with suspected ties to terrorism in

these challenged conditions for the litany of reasons

articulated by the dissent, see Dissenting Op., post at

292-93, those concerns de not justify detaining individuals

solely on the basis of an immigration violation and their

perceived race or religion in those same conditions.

Individualized 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

“arbitrary or purposeless.” Wolfish, 441 U.S. at 539, 99

S. Ct. 1861."

* The dissent cites several cases that it claims demonstrate that

individualized suspicion is not required for imposing restrictive

conditions of confinement. Dissenting Op., post at 290-91. We do

not disagree: individualized suspicion is not required to impose

conditions that are reasonably related to a legitimate governmental

objective. Wolfish, 441 U.S. at 539, 99 S. Ct. 1861. Thus, in each

of the cases cited by the dissent, rather than announce that indi-

vidualized suspicion was not required, the Supreme Court deter-

mined that the restrictions at issue in each of those cases were

related to the legitimate goal of prison security and, therefore,

47a

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,

99 S. Ct. 1861. That is the situation before us. Clearly

detention conditions less restrictive than the ADMAX

SHU were feasible for the MDC Plaintiffs, given that the

detainees held in the Passaic facility “were not held in

isolation or otherwise placed in restrictive confinement.”

Compl. 1 66. 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 De-

fendants’ decision 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, Plaintiffs’ well-

pleaded allegations, in conjunction with the OIG Report's

documentation of events such as the New York List con-

troversy, render plausible the claim that by the beginning

of November 2001, Ashcroft knew of, and approved, the

were not punitive. Thus, the cases cited by the dissent do not

change our conclusion here, where the challenged conditions—the

most restrictive available and imposed on detainees qua detainees

—are not reasonably related to either the goal of prison security,

or national security.

48a

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 Plaintiffs 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 limita-

tion noted above—may proceed against the DOJ De-

fendants.

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

established at the time in question. See Pearson v. Cal-

lahan, 555 U.S. 223, 232, 129 S. Ct. 808, 172 L. Ed. 2d 565

(2009); Varrone, 123 F3d at 78 (noting that the qualified

immunity inquiry turns, generally, on the objective legal

reasonableness of a defendant’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, 99 S. Ct. 1861.

And in Hasty, this Court denied qualified immunity with

respect to a materially identical conditions claim against

Hasty. 490 F3d at 168-69. We explained that “(t]he

right of pretrial detainees to be free from punitive re-

49a

straints was clearly established at the time of the events

in question, and no reasonable officer could have thought

that he could punish a pretrial detainee by subjecting him

to the practices and conditions alleged by the Plaintiff.”

Id. 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 circum-

stances. Jd. at 159. Nothing has undermined the logic

or precedential authority of our qualified immunity hold-

ing in Hasty. We therefore conclude that the DOJ De-

fendants are not entitled to qualified immunity on the

MDC Plaintiffs’ conditions of confinement claim.

Cc. 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 con-

ditions” allegations and “unofficial abuse” allegations.

The “official conditions” allegations concern express

confinement policies that the MDC Defendants approved

and implemented; the “unofficial abuse” allegations con-

cern the physical and verbal abuse that the MDC De-

fendants employed or permitted their subordinates to

employ. We find this taxonomy helpful in analyzing the

conditions claim against Hasty, Sherman, and Zenk.™

* Plaintiffs’ allegations against Zenk do not extend to the “unof-

ficial abuse” nor to any harm arising from the “official conditions”

50a

l. Official Conditions

The MDC Plaintiffs generally allege that the “offi-

cial conditions” to which the MDC Defendants subjected

them constituted punishment. We do not address

whether 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

challenged conditions were “not reasonably related to a

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

Wolfish, 441 U.S. at 539, 99 S. Ct. 1861.

The MDC Plaintiffs plausibly plead that Hasty and

Sherman are personally responsible for and caused the

MDC Plaintiffs to suffer the challenged conditions. The

Complaint 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. 1% 24, 75; see also id. 4 76 (de-

seribing the extreme conditions in the ADMAX SHU).

According to the Complaint, those conditions were then

approved and implemented by Hasty and Sherman. /d.

9 75.

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

that occurred prior to April 22, 2002, the date he became MDC

Warden.

5la

permitted by BOP policy.” Supplemental O1G Report at

9-3. As Warden and Associate Warden of the MDC,

Hasty and Sherman had the responsibility to carry out

these tasks. But that alone would not sustain liability for

either.

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.”

Wolfish, 441 U.S. at 539, 99 S. Ct. 1861. Specifically, the

MDC Plaintiffs allege that Hasty and Sherman imposed

these harsh conditions despite the fact that they “were

aware that the FBI had not developed any information to

tie the MDC Plaintiffs [and other detainees] they placed

in the ADMAX SHU to terrorism.” Compl. 1 69. As

discussed above with respect to the DOJ Defendants,

individualized suspicion was not required to subject de-

tainees to the restrictive conditions of confinement in-

herent in any detention. But the challenged conditions

were not simply restrictive; they were punitive: there is

no legitimate governmental purpose in holding someone

as if he were a 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 295 n.40, 294 (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

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

52a

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 Sher-

man received regular written updates explaining why

each detainee had been arrested and including “all evi-

dence relevant 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. 1 69.% They

further explain that “[t]he exact language of these up-

dates was repeated weekly, indicating the continued lack

of any information tying [Plaintiffs] to terrorism, or

tending to show that any of them might pose a danger.”

Id. 73.

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. 1 68; see also id. 111 73-74.

* For example, the MDC Defendants were informed that Plain-

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

that he used a fraudulent passport to enter the U.S. to seek asylum,

and later destroyed that passport; that he requested anid was de-

nied various forms of immigration relief; that he obtained and used

a fraudulent advance parole letter to enter the country, and that he

was thus inadmissible. The update included no statement of FBI

interest in Abbasi.” Compl. 9 72.

53a

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

assessment of their ‘precipitating offense, past terrorist

behavior, and inability to adapt to incarceration.’” Jd.

q 74. 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 ter-

rorism. See id. 1% 69-71, 74. These allegations are

buttressed by Plaintiffs’ assertions that they remained

confined in the ADMAX SHU even after receiving final

clearance from the New York FBI field office and FBI

Headquarters. 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. 1 188.

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

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

not really know whom the detainees were.” OIG Report

at 19; see also Compl. 1 4; OIG Report at 112, 126. Spe-

cific 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

54a

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 im-

posing the most restrictive form of detention available

when one lacks individualized evidence that the detainee

poses a danger to the institution or the nation. Accord-

ingly, we conclude that the MDC Plaintiffs plausibly plead

a substantive due process claim against Hasty and Sher-

man 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

remained in the ADMAX SHU. Fundamentally, the alle-

gations 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 Plain-

tiffs’’unofficial abuse” allegations under the deliberate

indifference standard commonly applied in the Eighth

Amendment prisoner-mistreatment context. See Turk-

men Ill, 915 F. Supp. 2d at 341 & n.13.% Given the

* The deliberate indifference standard would clearly apply if the

MDC Plaintiffs had been prisoners entitled to the EKighth Amend-

ment’s protection against cruel and unusual punishment. See

Walker v. Schult, 717 F.3d 119, 125 (2d Cir. 2013). Because a pre-

trial detainee’s rights are at least as robust as those of a sentenced

prisoner, we have applied the Eighth Amendment deliberate indif-

55a

nature of the MDC Plaintifts’ “unofficial abuse” allega-

tions, premising liability on Hasty and Sherman’s delib-

erate indifference is consistent with /qbal’s holding that

Biveus defendants are liable only if, through their own

actions, they satisfy each element of the underlying con-

stitutional tort. See 556 U.S. at 676, 129 8. Ct. 19387.

Prior to /qbal, this Court recognized claims against a

supervisory defendant so long as the defendant was

personally involved with the alleged constitutional viola-

tion. In Colon v. Coughlin, 58 F.3d &65, 873 (2d Cir

1995), this Court identified five ways in which a plaintiff

may establish a defendant’s personal involvement. One

is through a defendant’s “deliberate indifference.” /d.

As the district court explained, the fact that a particular

type of conduct constitutes “personal involvement” under

Colon does not inherently preclude the conduct from also

supporting a theory of direct liability. Turkmen IIT, 915

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

that a defendant “participated directly in the alleged

constitutional violation”—one form of personal involve-

ment enumerated in Colon, 58 F-3d at 873—could estab-

lish direct, as opposed to vicarious, liability. The proper

inquiry is not the name we bestow on a particular theory

or standard, but rather whether that standard—be it

deliberate indifference, punitive intent, or discriminatory

intent—reflects the elements of the underlying constitu-

tional tort. See Iqbal, 556 U.S. at 676, 129 S. Ct. 1937

ference test to pretrial detainees bringing claims under the Due

Process Clause of the Fifth Amendment. See, e.g., Cuoco v. Mor-

itsugu, 222 F.3d 99, 106 (2d Cir. 2000). We do not address wheth-

er civil immigration detainees should be governed by an even more

protective standard than pretrial criminal detainees.

56a

(“The factors necessary to establish a Bivens violation

will vary with the constitutional 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 Cireuit precedent. For instance, in Starr v. Baca, 652

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 F3d

1185, 1204-05 (10th Cir. 2010); Sandra TE. v. Grindle, 599

E'3d 583, 590-91 (7th Cir. 2010); Sanchez v. Pereira- Cas-

tillo, 590 F3d 31, 49 (ist Cir. 2009).

The MDC Plaintiffs’ “unofficial abuse” claim therefore

survives so long as Plaintiffs plausibly plead that the con-

ditions were sufficiently serious, and Hasty and Sherman

“kn[e]w of, and disregard] ed], an excessive risk to inmate

health or safety.” Walker, 717 F3d at 125 (internal quo-

tation marks omitted); accord Cuoco, 222 F.3d at 107.

The MDC Plaintiffs clearly meet this standard with re-

spect to Hasty. Simply stated, their factual allegations

permit the inference that he knew that MDC staff sub-

jected the MDC Plaintiffs to the “unofficial abuses” and

permitted—f not facilitated—the continuation of these

abuses. See Compl. 11 24, 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

required of him by BOP policy. /d. 11 24. The MDC

Plaintiffs also allege that Hasty was nonetheless made

aware of the abuse “through inmate complaints, staff

complaints, hunger strikes, and suicide attempts.” /d.;

see also id. 11 77-78 (detailing how Hasty made it difficult

57a

for detainees to file complaints and ignored the evicence

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-

tuiled in the OIG reports. /ad 1107. The MDC Plain-

tiffs also complain that Hasty encouraged his subordi-

nates’ harsh treatment of the detainees by himself refer-

ring to the detainees as terrorists. /d. V1 77, 109.

The allegations against Sherman, because they are

more general and conclusory in nature, are more tenuous.

For instance, Plaintiffs allege principally that Sherman

“allowed his subordinates to abuse MDC Plaintiffs and

class members with impunity. Sherman made rounds on

the ADMAX SHU and was aware of conditions there.”

Id. 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 Plain-

tiffs fail to plausibly plead an unofficial conditions claim as

to Sherman.”

3. Qualified Immunity

The MDC Defendants claim that qualified immunity

is appropriate because they were merely following the

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

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

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

® The MDC Plaintiffs nonetheless maintain a substantive due

process claim against Sherman as to the official conditions, as dis-

cussed supra.

58a

‘tightest’ security possible.” Jd. He further argues that

“Itlhe 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 de-

tainees in the ADMAX SHU.

These arguments fail. First, as with the DOJ De-

fendants, our qualified immunity analysis in Hasty ap-

plies 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 estab-

lished 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

legitimate governmental objective is punishment in viola-

tion of the constitutional rights of detainees. See 441

U.S. at 535-39 & n.20, 99 S. Ct. 1861; Hasty, 490 F.3d at

169. Furthermore, given 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 of

the events in question. See, e.g., DeShaney v. Winnebago

Cnty. Dep't of Soc. Servs., 489 U.S. 189, 200, 109 S. Ct.

59a

ggs, 103 L. Ed. 2d 249 (1989) (“[W]hen the State by the

affirmative exercise of its power so restrains an individu-

al’s liberty that it renders him unable to care for himself,

and at the same time fails to provide for his basic human

needs—-¢.g., food, clothing, shelter, medical care, and rea-

conable safety—it transgresses the substantive limits on

state action set by ... the Due Process Clanse.”); see

also Walker; 717 E3d at 125, 180; 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 treatment.

Because Plaintiffs’ allegations support an inference of

punitive intent, and it would be inappropriate to wrestle

with competing factual accounts at this stage of the liti-

gation, we hold that a reasonable officer in the MDC De-

fendants’ position would have concluded that this treat-

ment was not reasonably related to a legitimate goal.

IV. Claim 2: Equal Protection—Conditions of Confine-

ment

Plaintiffs next assert a claim that Defendants sub-

jected them to the harsh conditions of confinement de-

tailed above based on their race, ethnicity, religion, and/or

national origin, in violation of the equal protection guar-

antee of the Fifth Amendment.”

-

* All Plaintiffs assert an equal protection claim against the DOJ

Defendants. Abbasi, Khalifa, Mehmood, and Bajracharya do not

assert this claim against Zenk, and Sachdeva and Turkmen do not

make this claim against any of the MDC Defendants.

60a

A. Applicable Legal Standard

‘lo state an equal protection violation under the Fifth

Amendment, “the plaintiff must plead and prove that the

defendant acted with discriminatory purpose.” /qbal,

556 U.S. at 676, 129 S. Ct. 1937. “|P]urposeful discrimi-

nation requires more than intent as volition or intent as

awareness of consequences.” /d. (internal quotation

marks omitted). “It instead involves a decisionmaker’s

undertaking a course of action because of, not merely in

spite of, [the action’s| adverse effects upon an identifiable

group.” /d. at 676-77, 129 S. Ct. 1937 (alteration in orig-

inal) (internal quotation marks omitted).

A plaintiff can show intentional discrimination by:

(1) “pointfing] to a law or policy that expressly classifies

persons on the basis of” a_ suspect classification;

(2) “identifyling] a facially neutral law or policy that has

been applied in an intentionally discriminatory manner{;]|”

or (3) “allegling] that a facially neutral statute or policy

has an adverse effect and that it was motivated by dis-

criminatory animus.” Brown v. City of Oneonta, N.Y.

221 F'3d 329, 337 (2d Cir. 2000) (internal quotation marks

omitted). The district court characterized Plaintiffs’

equal protection claim as falling within the first category

—that is, a claim that Defenclants subjected Plaintiffs to

the challenged 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 appeal, we will not analyze this claim, particularly as it

relates to the MDC Defendants, under the first equal

protection theory alone.

6la

B. The DOJ Defendants

The district court concluded that Plaintiffs failed to

state an equal protection claim against the DOJ Defend-

ants, but “ffou}nd the issue to be a close one.” Turkmen

JIL, 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 pro-

tection claim against Ashcroft, Mueller, and Ziglar.

Plaintiffs’ well-pleaded allegations and the OIG Report

give rise to the following reasonable inferences, which

render plausible the MDC Plaintiffs’ equal protection

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. “(The 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

62a

telling, a supervisor in the same local FBI office, “who

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.” Jd. Individuals who were ar-

rested 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 indi-

vidual’s Arab appearance,” Compl. {| 42, 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 {Al]rab male’ videotaping outside a Queens| |

office building that contained the Queens County District

Attorney’[s] Office and a New York FBI office.” Jd.

{ 230. 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.” Jd. 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

officials 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,

63a

the OIG Report reveals that by October 2001 the SIOC

Working Group learned about the New York List and that

“yfficials at the INS, FBI, and |DOJ] raised concerns

about, among other things, whether the aliens had any

nexus to terrorism.” OIG Report at 53. Plaintiffs allege

that a high-ranking DOJ official noted that individuals

were detained “without any attempt” to determine if they

were of “actual interest,” and that the official “was con-

cerned early in the investigation that detainees were

being held simply on the basis of their ethnicity.” Compl.

q 45. 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.

q 47, see also id. I 63-64, and Mueller “was in daily

contact with the FBI field offices regarding the status of

individual 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 placing

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 conditions

of confinement. Plaintiffs further allege that Mueller

64a

and Ziglar were aware that the New York List contained

detainees against whom the FBI had asserted no interest

and that subjecting them to the challenged conditions

would be facially unreasonable. In ordering and com-

plying with the merger of the New York List, the DOJ

Defendants actively condoned the New York FBI field

office’s discriminatory formulation of that list.

The DOJ Defendants’ condonation of the New York

FBI 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 /gbal stated that “dis-

crete wrongs—for instance, beatings—by lower level

Government actors| | ... if true, and if condoned by

[Asheroft and Mueller], could be the basis for some in-

ference of wrongful intent on [Ashcroft and Mueller’s]

part.” 556 U.S. at 683, 129S. Ct. 1937. In asimilar vein,

we have held, in a case involving an equal protection claim

under 42 U.S.C. § 1983, that a reasonable factfinder could

conclude 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 dis-

criminatory intent because they knew that the New York

List was formed in a discriminatory manner, and never-

theless 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.

65a

Contrary to the dissent’s contentions, see Dissenting

Op., post at 295-97, this case is distinguishable from /qbai,

where the Supreme Court concluded that the plaintiff

failed to state an equal protection claim. In /qbal, there

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, 129 S. Ct. 1937.

Those more likely explanations for the plaintiff’s treat-

ment, according to the Supreme Court, were that Ash-

croft and Mueller supported “a legitimate policy ... to

arrest and detain individuals because of their suspected

link to the attacks,” which “produce[d] a disparate, inci-

dental impact on Arab Muslims, even though the purpose

of the policy was to target neither Arabs nor Muslims.”

Id. at 682, 129 S. Ct. 1937 (emphasis added). The Su-

preme Court noted that “(o/n the facts respondent alleges

the arrests Mueller oversaw were likely lawful and justi-

fied 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, 129

S. Ct. 1937 (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 /gbal, 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 information

tying Plaintiffs to terrorist activity, but decided to merge

66a

the lists anyway.*’ Thus, unlike in /gbal, there was 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 mer-

ger decision because not all of the individuals on the New

York List were subjected to the same level of restrictive

confinement. See Dissenting Op., post at 297-98. But

the fact that some individuals of the same race, ethnicity,

religion, and/or national origin as the MDC Plaintiffs

were restrained in the Passaic County Jail, as opposed to

*’ Given the clear language used by the Supreme Court in /qbal

regarding the detainees’ connections to terrorism, 556 U.S. at

682-83, 129 S. Ct. 1937, we understand the /qbal Court to have re-

jected as conclusory the allegation in the /gbal complaint identified

by the dissent, which only pleads in the broadest terms that the

Iqbal plaintiffs were confined without “any individual determina-

tion” that such restrictions were “appropriate or should continue.”

See Dissenting Op., post at 298 (quoting First Am. Compl. 9 97,

App. to Pet. for Cert. 173a, Ashcroft v. Iqbal, No. 07-1015 (U.S.

Feb. 6, 2008), available at http://l.usa.gov/ICfHJQF). Here, in

contrast, the well-pleaded allegations, as supported by the OIG

reports, allege that the DOJ Defendants made, and complied with,

the decision to merge the New York List with the national INS

List, thereby ensuring that the MDC Plaintiffs, and others, re-

mained in the challenged conditions of confinement despite the ab-

sence of any suspicion that they were tied to 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’ al-

legations that the DOJ Defendants also possessed the discrimina-

tory intent required for an equal protection claim. See supra

Section ITI.B.

67a

the ADMAX SHU, hardly dooms the MDC Plaintiffs’

claim against the DOJ Defendants. There is no allega-

tion that the DOJ Defendants were responsible for the

assignment of certain actual or perceived Arab and Mus-

lim mates to Passaic as opposed to the more restrictive

ADMAX SHU. See OIG Report at 17-18, 126-27, 158

(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 indi-

viduals were actually assigned to the less restrictive

Passaic facility is thus a red herring.”

* Moreover, to the extent this differential assignment of class

members, again apparently by agents of the New York FBI and

not the DOJ Defendants, might be relevant to Plaintiffs’ equal pro-

tection claim, because it could suggest that the New York FBI was

not actually discriminating, it is more appropriately considered at

summary judgment. Indeed, the cases embraced by the dissent

conclude that evidence of differential treatment of members of the

same class may weaken an inference of discrimination at the suwm-

mary judgment stage. See O'Connor v. Consol. Coin Caterers

Corp., 517 U.S. 308, 309, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996)

(summary judgment); Fleming v. MaxMara USA, Inc., 371 Fed.

Appx. 115, 116 (2d Cir. 2010) (summary order) (summary judg-

ment); James v. N.Y. Racing Ass’n, 233 F.3d 149, 151 (2d Cir. 2000)

(summary judgment). In light of the well-pleaded allegations re-

garding discrimination by the New York FBI, Plaintiffs have hard-

ly pleaded themselves out of court on this point.

68a

Based on the foregoing, we conclude that the MDC

Plaintiffs’ allegations are sufficient to state an equal

protection 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.

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 decision 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 alleged

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

asserts 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. 1 74. However, these Defend-

ants never actually undertook that “required individual-

ized assessment.” Jd. 1 73. 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 in-

dividualized assessment of their ‘precipitating offense,

past terrorist behavior, and inability to adapt to incarcer-

ation.’” Jd. {| 74. In fact, neither Hasty nor Sherman

“saw or considered information in any of these categories

in deciding to place the 9/11 detainees in the ADMAX

69a

SHU.” Id.;" see also id. 11 68-72 (Hasty and Sherman

held the MDC Plaintiffs in the ADMAX SHU knowing

that they were not tied to terrorism and without per-

forming the required individualized assessment of wheth-

er Plaintiffs posed a danger to the facility).

Based on the foregoing allegations of duplicity re-

garding the basis for confining the 9/11 detainees, it is

reasonable to infer that Hasty and Sherman approved

this false document to justify detaining actual or per-

ceived 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, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000) (in the em-

ployment 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, 113 S. Ct. 2742, 125 L. Ed. 2d 407

(1993) (“disbelief of the reasons put forward by the de-

fendant (particularly if disbelief is accompanied by a

suspicion of mendacity) may ... show intentional

” As previously noted, the term “9/11 detainees” is defined in the

Complaint as noncitizens from the Middle East, South Asia, and

elxewhere who are Arah 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 consti-

tute the putative class in this case.

70a

discrimination” in the employment discrimination con-

text).

The dissent argues that we cannot infer discriminatory

intent from the MDC Defendants’ approval of this false

document, concluding that the “more likely” reason for

this mendaeity is these Defendants’ concern for national

security. See Dissenting Op., posf at 299-300. Although

recognizing that the MDC Defendants might be faulted

for approving a false document stating that each detainee

had been assessed as a “High Security” “suspected ter-

rorist| [,” our dissenting colleague believes Hasty and

Sherman's actions are more likely explained by reliance

on the FBI's designation of each MDC Plaintiff as a

person “of interest” or “of high interest” to the ongoing

terrorism investigation. Yet, the allegations in the Com-

plaint belie this alternative explanation for Hasty and

Sherman's dishonesty. Plaintiffs allege that the “MDC

Defendants were aware that the FBI had not developed

any trformation” to tie the 9/11 detainees to terrorism.

Compl. 1 69 (emphasis added). Indeed, the MDC De-

fendants received regular updates on the FBI's investi

gation, mueluding the dearth of evidence connecting the

WY11 detainees to terrorism. Such briefing—placing

Hasty and Sherman on repeated notice of the lack of any

specific information justifying restrictive confinement in

the ADMAX SHU—+renders implausible the innocent ex-

planation for their mendacity.

As un 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

Tla

Hasty and Sherman approved the document even though

they bad not performed the required individualized as-

sessments and knew that keeping “the 9/11 detainees” in

the ADMAX SHU without those assessments was un-

lawful. Jd. 11 73-74. They further allege that, in ap-

proving the document, Hasty and Sherman failed to con-

sider the past offenses, past terrorist activity, and inabil-

ity to adapt to incarceration with respect to “the 9/11 de-

tainces.” /d. 174. Based on Plaintiffs’ allegations about

how the false document related in particular to the 9/11

detainees, a group the Complaint specifically defines on

racial, ethnic, and religious grounds, see id. {1 1, it is rea-

sonable to infer, at least at the motion to dismiss stage,

that 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. | 109 (MDC staff referred to the MDC Plaintiffs as

terrorists and insulted their religion); id. {1 110 (Saeed

Hammouda and others complained “that MDC staff called

them ‘camel[s]’”); id. 1 1836 (MDC staff mocked Plaintiffs’

prayers and interrupted their praying by “screaming

derogatory anti-Muslim comments”); id. 1 218 (during his

transport and processing Hammouda was called “Arabic

asshole”). These allegations are supported by the OIG

reports. See OIG Report at 144 (noting allegations that

MDC officers used racial slurs); Supplemental OIG Re-

port at 28-30 (concluding that some MDC staff verbally

abused detainees based on their Muslim faith, among

other grounds).

, The context in which the term “terrorist” was used at

the MDC bolsters the inference that the MDC Plaintiffs

T2a

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 “‘fueking Muslims’

and ‘terrorists,’” Compl. 1 147, as well as “‘terrorist’ and

‘Arabie asshole,’” id. 11 218; see also Supplemental OIG

Report at 28 (noting that along with the term “terrorists,”

MDC staff referred to detainees as “fucking Muslims”

and “bin Laden Junior” (internal quotation marks omit-

ted)).

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 religiously

charged language was brought to the attention of the

MDC Defendants through detainee complaints and re-

ports from MDC staff, among other means. Mere know-

ledge 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, 129 S. Ct. 1987. However, with respect to Hasty,

Plaintiffs alleze more than mere awareness of the MDC

staff’s discriminatory treatment of the MDC Plaintiffs.

Plaintiffs claim that Hasty fostered the MDC staff’s use

of discriminatory language to refer to the MDC Plaintiffs

by himself “referring to the detainees as ‘terrorists,’”

Compl. {1 77, see also id. {| 109, notwithstanding Hasty’s

knowledge that the MDC Plaintiffs lacked ties to terror-

ism. 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 ap-

proved 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

73a

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 terrorists, 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 detained

them in the challenged conditions because of their race,

ethnicity, religion, and/or national origin. These De-

fendants’ approval of the false document, and Hasty’s use

of charged language in the particular context of the MDC

Plaintiffs’ detention, support the reasonable inference

that Hasty and Sherman subjected the MDC Plaintiffs to

harsh conditions of confinement based on suspect classi-

fications.

With respect to Zenk, the MDC Plaintiffs’ allegations

are more limited and fail to support the reasonable in-

ference that he established or implemented the alleged

conditions of confinement based on animus that offends

notions 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

defendant 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.

74a

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| | wlas} ... clearly established

prior to 9/1l,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 be-

cause of his race, ethnicity, and religion,” and “that De-

fendants specifically targeted [him| for mistreatment

because of |his] race, religion, and national origin.” /d. at

174 (alterations in original). We concluded “that any

reasonably competent officer would understand [those

alleged actions] to have been illegal under prior case law.”

Id. (internal quotation marks omitted). There is no

reason that this analysis should not govern here. Al-

though, as the dissent notes, see Dissenting Op., post at

290, Hasty employed 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 estab-

lished 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

Tha

decision denying Zenk’s motion to dismiss the equal

protection claim.

Because the Passaic Plaintiffs were held in the general

population 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

national origin. Thus, we affirm the district court’s

dismissal of the Passaic Plaintiffs’ equal protection claim.

Vv. Claim6: Unreasonable and Punitive Strip Searches

The MDC Plaintiffs claim that they were subject to

unreasonable and strip searches while detaine’ at the

MDC, in violation of the Fourth and Fifth Ameno. ients.*’

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 gov-

erning prisons. See id. Under that standard, a “regu-

lation is valid if *t is reasonably related to legitimate

penological inter ts.” Turner v. Safley, 482 U.S. 78, 89,

107 S. Ct. 2254, v6 L. Ed. 2d 64 (1987). Given that the

* Only the MDC Plaintiffs assert this claim, which is only raised

against the MDC Defendants. Benatta and Hammouda alone as-

sert this claim against Zenk. To the extent that the MDC Plain-

tiffs’ allegations regarding the strip searches are cognizable under

the Fifth Amendment, we factor these allegations into our analysis

of the substantive due process claim, which is discussed above.

See supra Section LIL.C.

76a

parties here do not argue for a different standard, we as-

sume that the foregoing standard applies in this case.“

B. The MDC Defendants

The MDC Plaintiffs allege that Defendant Joseph

Cuciti, a former lieutenant at the MDC and not a party on

appeal, was tasked with “developing the strip-search

policy on the ADMAX [SHU].” Compl. 111. Plaintiffs

further claim that “Hasty ordered ... Cuciti to design

extremely restrictive conditions of confinement.” Jd.

‘| 75. The reasonable inference based on these allega-

tions is that Hasty ordered Cuciti to develop the strip-

search policy, which was “then approved and implemented

by Hasty and Sherman, and, later, by Zenk.” Jd.

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, in-

cluding after non-contact attorney visits, when “physical

contact between parties was prevented by a clear parti-

tion,” 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

* We note, however, that this standard governs prison regula-

tions, see Turner, 482 U.S. at 89, 107 S. Ct. 2254, and that the

application of this standard in Hasty may have been justified be-

cause the plaintiff in that case faced criminal charges (apparently

felonies), see 490 F.3d at 147-48 & n.1, 162 n.8, 172. In contrast,

Plaintiffs here were almost exclusively charged with civil immigra-

tion violations and were detained on that basis. While it may be

that a different standard, one more favorable to detainees, should

govern the constitutionality of searches in the context of civil im-

migration detention, we leave that question for another day.

77a

jet out of his cell on any of those days. Numerous strip

searches were documented in a “visual search log” that

wus created for review by MDC management, including

Hasty. Compl. 1 114 (internal quotation marks omitted).

Plaintiffs’ allegations regarding the strip searches are

supported by the Supplemental OIG Report, which con-

cluded 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

strip-search policy that was not reasonably related to le-

gitimate penclogical 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 ob-

tained 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 im-

plementation of the strip-search policy." These allega-

“ 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

302, that assertion is incorrect. As discussed, Plaintiffs have

plausibly alleged that Hasty ordered the development of, and that

he and Sherman approved and implemented, the challenged strip-

search policy. Plaintiffs’ allegations regarding the visual search

log only buttress the inference of Hasty’s personal involvement.

78a

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-eavity searches in the same room”); Hodges v.

Stanley, 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”).“*

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 be-

came 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

“ Although the dissent correctly notes that Hodges was decided

before the Supreme Court’s opinion in Turner, see Dissenting Op.,

post at 257, we have ratified Hodges in subsequent strip search

case law. See Hasty, 490 F.3d at 172; N.G. v. Connecticul, 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 penological purpose where the strip searches are “im-

mediately successive.” Dissenting Op., post at 257 (emphasis add-

ed). Like previous panels, we read Hodges as holding that a

search may be unnecessary and purposeless where “there was no

possibility that [the plaintiff] could have obtained and concealed

contraband.” 712 F.2d at 35; see also N.G., 382 F.3d at 233-34.

Here, consistent with Hodges, Plaintiffs have plausibly alleged that

they were strip searched when there was no opportunity to acquire

contraband, including in instances where they were shackled and

under escort, or were never permitted to leave their cells.

79a

have not sufficiently alleged that they were unlawfully

strip searched during the period in which Zenk was

Warden of the MDC.

Cc. 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 allegecdi 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 searches 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

legitimate government purposes.” 490 F.3d at 172; see

iso 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 9/1l,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 Sherman

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

80a

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 ele-

ments: “(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 must be some racial, or perhaps otherwise class-

based, invidiously discriminatory animus behind the con-

spirators’ action.” Griffin v. Breckenridge, 403 U.S. 88,

102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971); accord Reyn-

olds v. Barrett, 685 F.3d 193, 201-02 (2d Cir. 2012).

® 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 indirect-

ly, any person or class of persons of the equal protection of

the laws, or of equal privileges and immunities under the

laws; ... if one or more persons engaged therein do, or

cause to be done, any act in furtherance of the ooject of such

conspiracy, ... the party so injured or deprived may have

an action for the recovery of damages occasioned by such in-

jury or deprivation, against any one or more of the conspira-

tors.

Sla

B. The Sufficiency of the Allegations

In this case, the MDC Plaintiffs have sufficiently al-

jeged that Ashcroft, Mueller, and Ziglar met regularly

and eventually agreed to subject the detainees to the

ehallenged 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-

guired 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 in-

ference that these two Defendants came to an agreement

to and did subject Plaintiffs to harsh conditions of con-

finement 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

can suffice under Section 1985(3). See Webb v. Goord, 340

F3d 105, 110-11 (2d Cir. 2003). The Complaint asserts

that the conditions of confinement at the MDC “were

formulated in consultation with the FBI.” Compl. 4 65.

In addition, Hasty ordered, and Hasty and Sherman ap-

proved and implemented, the conditions of confinement

“{tlo carry out Ashcroft, Mueller[,] and Ziglar’s unwritten

policy to subject the 9/11 detainees to harsh treatment.”

ld. 75; see also id. 168. The foregoing allegations are

sufficient to support the reasonable inference that the

DOJ Defendants, Hasty, and Sherman shared such a tacit

82a

understanding about carrying out the unlawful conduct

with respect to the MDC Plaintiffs’ detention.

Accordingly, the MDC Plaintiffs’ allegations state a

plausible claim for a Section 19X5(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 defen-

dants formed a “single business entity with a managerial

policy implemented by the one governing board.” Jd. 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

entities in a single institution have “disparate responsi-

bilities and functions,” a conspiracy claim could lie be-

cause the actions of those entities would not be “actions of

only one policymaking body.” Jd.

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

83a

INS, and the former Warden and Associate Warden at the

MDC had varied responsibilities and functions that dis-

tinguish them from the single corporate entity in Girard.

Although Hasty and Sherman may have acted, at least in

part, to implement the DOJ Defendants’ policy, it is also

the case that Hasty and Sherman themselves established

policies at the MDC. Thus, factual questions about how

disparate or distinet Defendants’ functions were, and how

policy was created by the various Defendants, preclude us

from deciding as a matter of law that Defendants resem-

ble 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

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 federal

officials to deprive a person of equal protection of the

laws.” 490 F3d at 177. In that case, we denied the de-

* 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 cannot conspire together under Section 1985. See Chesser

v. Walton, No. 12-cev-01198-JPG, 2013 WL 1962285, at *3 (S.D. IIl.

May 10, 2013). However, for the reasons stated above, neither

this statutory provision nor district court case satisfy us that

Defendants here were sufficiently similar to the members of a

single corporate policymaking body such that the intracorporate

conspiracy doctrine should apply.

84a

fendants qualified immunity on the Section 1985(3) claim.

See id. Given the sufficiency of the allegations in this

case, our qualified immunity decision in //asty 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 dis-

miss this claim. Because the MDC Plaintiffs fail to ade-

quately plead that Zenk acted with discriminatory ani-

mus, we reverse the denial of Zenk’s motion to dismiss the

conspiracy claim. This claim is also dismissed with re-

spect to the Passaic Plaintiffs, as they fail to adequately

plead that Defendants acted with the requisite discrimi-

natory animus.

VII. Final Thoughis

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’

authority; detaining individuals as if they were terrorists,

in the most restrictive conditions of confinement availa-

ble, 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 De-

fendants to take action, but that is of little solace to those

who felt the brunt of that decision. The suffering en-

cured by those who were imprisoned merely because they

were caught up in the hysteria of the days immediately

following 9/11 is not without a remedy.

Holding individuals in solitary confinement twenty-

three hours a day with regular strip searches because

85a

their perceived faith or race placed them in the group

turgeted for recruitment by al Qaeda violated the de-

tainees’ constitutional rights. To use such a broad and

general basis for such severe confinement without any

further particularization of a reason to suspect an indi-

vidual’s connection to terrorist activities requires certain

assumptions about the “targeted group” not offered by

Defendants nor supported in the reeord. It assumes that

members of the group were alreacy 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 safety

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.

CONCLUSION

lor 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

substantive due process claim against the DOJ Defend-

ants, against Hasty with regard to both official and unof-

ficial conditions, and against Sherman with regard to

S6a

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 Defendants are not entitled to qualified immunity

on this claim; (3) the free exercise claim is dismissed as to

all Defendants; (4) the MDC Plaintiffs have plausibly al-

leged their Fourth Amendment strip search claim against

Hasty and Sherman, and these Defendants are not enti-

tled to qualified immunity on this claim; (5) the MDC

Plaintiffs have plausibly alleged the Section 1985(3) con-

spiracy claim against the DOJ Defendants, Hasty, and

Sherman, and these Defendants are not entitled to quali-

fied immunity 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 consistent

with this opinion.

REENA 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 highest

ranking law enforcement officials—the Attorney General

of the United States and the Director of the Federal

Bureau of Investigation (“FBI”)—for policies propound-

ed to safeguard the nation in the immediate aftermath of

the infamous al Qaeda terrorist attacks of September 11,

87a

9001 (“9/11").’ L respectfully dissent from this extension

of Bivens to a context not previously recognized by Su-

preme Court or Second Circuit precedent. I do not sug-

gest that executive action in this, or any other, context is

not subject to constitutional constraints. I conelucde 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 secu-

rity policy pertaining to the detention of illegal aliens in

the aftermath of terrorist attacks by aliens operating

within this country, Congress, not the judiciary, is the ap-

propriate branch to decide whether the detained aliens

should be allowed to sue exeentive policymakers in their

individual capacities for money damages.

Even if a Bivens action were properly recognized in

this context—which | submit it is not—I would still dis-

sent insofar as the majority denies qualified immunity to

five former federal officials, Attorney General John Ash-

croft, FBI Director Robert Mueller, Immigration and

Naturalization Service (“INS”) Commissioner James

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