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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0664%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2016

## Text

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
ia iia caniesbcidecerpdbiinstenniadiioatones la
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
Ee eee 25la

(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 confinem

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0664%3A2. Public record. Not legal advice.