# Appendix — Hasty v. Turkmen, 137 S. Ct. 293 (2016) (No. 15-1363)

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0665%3A2

## Record

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

## Text

IN THE

Supreme Court of the Guited States

DENNIS HASTY AND JAMES SHERMAN,
Petitioners,
Vv.
IBRAHIM TURKMEN, AKHIL SACHDEVA,
AHMER IQBAL ABBAS!I, ANSER MEHMOOD,

BENAMAR BENATTA, AHMED KHALIFA,
SAEED HAMMOUDA, AND PURNA BAJRACHARYA,

Respondents.

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Second Circuit

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI

CLIFTON S. ELGARTEN JEFFREY A. LAMKEN
SHARI Ross LAHLOU Counsel of Record
KATE M. GROWLEY MICHAEL G. PATTILLO, JR.

CROWELL & MORING LLP ERIC R. NITZ
1001 Pennsylvania Ave.,. NW MOLOLAMKEN LLP
Washington, D.C. 20004 The Watergate, Suite 660

(202) 624-2500 600 New Hampshire Ave., NW
celgarten@’crowell.com Washington, D.C. 20037

(202) 556-2000
Counsel for Dennis Hasty jlamken@mololamken.com

Counsel for James Sherinan

(Additional Counsel Listed on Inside Cover)

BRITT HAMILTON
MOLOLAMKEN LLP
540 Madison Ave.

New York, N.Y. 10022
(212) 607-8160

DEBRA L. ROTH

JULIA H. PERKINS

SHAW BRANSFORD & ROTH
1100 Connecticut Ave., NW
Suite 900

Counsel for James Sherman

TABLE OF CONTENTS

Appendix A — Opinion of the Court of Appeals

| 8 AE Sroka a

Appendix B - Memorandum and Order of the

District Court (Jan. 15, 20138) ..........cccccceseseeeeesees

Appendix C — Order of the Court of Appeals

Denying Rehearing (Dec. 11, 2015)...................

Appendix D — Relevant Constitutional and

Statutory Provisions.................csscesceeesceeeeeeeeneeees

Appendix E — Fourth Amended Complaint

ee IN IE csneichpeesensiaceieshemnsitibaiininimsscomarennvene

Appendix F — U.S. Department of Justice,
Office of the Inspector General, The

September 11 Detainees (Apr. 2003) ................

Appendix G —- Memorandum from
S. Lopresti to All Staff Assigned to SHU

| RRR er ee

(i)

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

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

IBRAHIM TURKMEN, AKHIL SACHDEVA, AHMER IQBAL
ABBASI, ANSER MEIIMOOD, BENAMAR BENATTA, AHMED
KHALIFA, SAEED HAMMOUDA, 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 MUELLER, FORMER DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION; JAMES W.
ZIGLAR, FORMER COMMISSIONER, IMMIGRATION AND
NATURALIZATION SERVICE,

Defendants-Cross-Appellees,

SALVATORE LOPRESTI, FORMER METROPOLITAN
DETENTION CENTER CAPTAIN; JOSEPH CUCITI, FORMER
METROPOLITAN DETENTION CENTER LIEUTENANT,

Defendants.*

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

(1a)

2a

Appeal from the United States District Court
for the Eastern District of New York

oon — “

OPINION

Argued: May 1, 2014
Decided: June 17, 2015

Before POOLER, RAGGI, and WESLEY, Circuit
Judges.

Appeal from a January 15, 2013 Memorandum and
Order of the United States District Court for the Eastern
District of New York (Gleeson, J.) granting in part and
denying in part Defendants’ motions to dismiss. Cross-
appeal from an April 10, 2013 Judgment of the United
States District Court for the Eastern District of New
York (Gleeson, J.), which was entered pursuant to Rule
54(b) of the Federal Rules of Civil Procedure on April 11,
2013, granting certain Defendants’ motions to dismiss.
We AFFIRM in part and REVERSE in part. Judge
Raggi concurs in part in the judgment and dissents in
part in a separate opinion.

mg th

POOLER and WESLEY, Circuit Judges.

On September 11, 2001, “19 Arab Muslim hijackers
who counted themselves members in good standing of al
Qaeda” hijacked four airplanes and killed over 3,000 peo-
ple on American soil. Ashcroft v. Iqbal (Iqbal), 556 U.S.
662, 682 (2009). This case raises a difficult and delicate

3a

set of legal issues concerning individuals who were
caught up in the post-9/11 investigation even though they
were unquestionably never involved in terrorist activity.
Plaintiffs are eight male, “out-of-status” aliens’ who were
arrested on immigration charges and detained following
the 9/11 attacks. Plaintiffs were held at the Metropolitan
Detention Center (the “MDC”) in Brooklyn, New York,
or the Passaic County Jail (“Passaic”) in Paterson, New
Jersey; their individual detentions generally ranged from
approximately three to eight months.

The operative complaint, a putative class action, as-
serts various claims against former Attorney General
John Ashcroft; former Director of the Federal Bureau of
Investigation (the “FBI”) Robert Mueller; former Com-
missioner of the Immigration and Naturalization Service
(the “INS”) James Ziglar; former MDC Warden Dennis
Hasty; former MDC Warden Michael Zenk; and former
MDC Associate Warden James Sherman.’ All claims
arise out of allegedly discriminatory and punitive treat-
ment Plaintiffs suffered while confined at the MDC or
Passaic.

' We use the term “out-of-status” alien to mean one who has either
(1) entered the United States illegally and is deportable if appre-
hended, or (2) entered the United States legally but who has fallen
“out of status” by violating the rules or guidelines for his nonimmi-
grant status (often by overstaying his visa) in the United States and
is deportable.

* For ease of reference, we refer to Ashcroft, Mueller, and Ziglar col-
lectively as the “Department of Justice (‘DOJ’) Defendants,” and
Hasty, Sherman, and Zenk collectively as the “MDC Defendants.”
The operative complaint also alleges claims against MDC officials
Joseph Cuciti and Salvatore Lopresti. Cuciti did not appeal the dis-
trict court’s decision, and Lopresti filed a notice of appeal but did not
timely pay the filing fee or file a brief. Lopresti’s appeal was dis-
missed pursuant to Federal Rule of Appellate Procedure 31(c).
Thus, we do not address the claims against Cuciti and Lopresti.

4a
BACKGROUND
I. PROCEDURAL HISTORY’

Plaintiffs initiated this action over thirteen years ago
on April 17, 2002. Over the following two and one-half
years, Plaintiffs amended their complaint three times. In
June 2006, following a series of motions to dismiss, the
district court dismissed Plaintiffs’ unlawful-length-of-
detention claims but permitted to proceed, inter alia, the
substantive due process and equal protection claims chal-
lenging the conditions of confinement at the MDC. See
Turkmen v. Ashcroft (Turkmen I), No. 02 CV 2307(JG),
2006 WL 1662663, at *33-36, 40-41 (E.D.N.Y. June 14,
2006), aff’d in part, vacated in part, Turkmen v. Ashcroft
(Turkmen II), 589 F.3d 542 (2d Cir. 2009) (per curiam),
remanded to Turkmen II], 915 F. Supp. 2d at 314. Plain-
tiffs and Defendants appealed various aspects of that rul-
ing.

Two significant events occurred while the appeal was
pending. First, six of the original eight named Plaintiffs
at that time withdrew or settled their claims against the
government. See Turkmen II, 589 F.3d at 544 n.1, 545.
This left only Ibrahim Turkmen and Akhil Sachdeva,
both of whom were detained at Passaic, as opposed to the
MDC. Second, the Supreme Court issued /qbal, 556 U.S.
at 662, which altered the pleading regime governing
Plaintiffs’ claims. In light of these events and the re-
maining Plaintiffs’ stated desire to replead claims unique
to the settling Plaintiffs, this Court affirmed the dismis-
sal of the length of detention claims but vacated and re-
manded with respect to the conditions of confinement
claims. See Turkmen I], 589 F.3d at 546-47, 549-50.

* For a more comprehensive review of this case’s procedural history,
see Turkmen v. Ashcroft (Turkmen ITI), 915 F. Supp. 2d 314, 331-33
(E.D.N.Y. 2013).

5a

On remand, the district court permitted Plaintiffs to
amend their complaint and granted leave for six addi-
tional Plaintiffs, all of whom had been held at the MDC,
to intervene. The eight current named Plaintiffs are of
Middle Eastern, North African, or South Asian origin; six
of them are Muslim, one is Hindu, and one is Buddhist.
The Fourth Amended Complaint (the “Complaint”), the
operative complaint in this case, restates Plaintiffs’ puta-
tive class claims on behalf of the “9/11 detainees,” a class
of similarly situated non-citizens who are Arab or Mus-
lim, or were perceived by Defendants as Arab or Muslim,
and were arrested and detained in response to the 9/11

attacks."

The Complaint dramatically winnowed the relevant
claims and defendants; it alleges seven claims against
eight defendants. The first six claims, all brought pursu-
ant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), are: (1) a condi-
tions of confinement claim under the Due Process Clause;
(2) an equal protection claim alleging that Defendants
subjected Plaintiffs to the challenged conditions because
of their, or their perceived, race, religion, ethnicity,
and/or national origin; (3) a claim arising under the Free
Exercise Clause; (4) and (5) two claims generally alleging
interference with counsel; and (6) a claim under the
Fourth and Fifth Amendments alleging unreasonable
and punitive strip searches. The seventh and final claim
alleges a conspiracy under 42 U.S.C. §1985(3). The DOJ

‘ Benamar Benatta was originally detained by Canadian authorities
on September 5, 2001, after crossing the Canadian border with false
documentation. Following the September 11 attacks, Benatta was
transported back to the United States and detained in the challenged
conditions of confinement and pursuant to the post-9/11 investiga-
tion; therefore, we call him a “9/11 detainee.”

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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.

II. THE OIG REPORTS

Plaintiffs supplemented the factual allegations in their
amended complaints with information gleaned from two
reports by the Office of the Inspector General of the
United States Department of Justice (the “OIG re-
ports”)* that documented the federal law enforcement re-
sponse to 9/11 and conditions at the MDC and Passaic.

The OIG reports, which the Complaint “incorporate[s |
by reference except where contradicted by the allega-
tions of [the Complaint],” Compl. 13 n.1, see also id. 15
n.2, play a significant role in this case." Primarily, the

* There are two OIG reports. The first OIG report, published in
June 2003, covers multiple aspects of law enforcement’s response to
9/11. See U.S. Dep’t of Justice, Office of the Inspector General, The
September 11 Detainees: A Review of the Treatment of Aliens Held
on Immigration Charges in Connection with the Investigation of the
September 11 Attacks (April 2003) (the “OIG Report”), available at
http://www justice.gov/oig/special/0306/full.pdf. The second OIG re-
port, published in December 2003, focuses on abuses at the MDC.
See U.S. Dep’t of Justice, Office of the Inspector General, Supple-
mental Report on September 11 Detainees’ Allegations of Abuse at
the Metropolitan Detention Center in Brooklyn, New York (Dec.
2003) (the “Supplemental OIG Report”), available at
http://www. justice.gov/oig/special/0312/final.pdf.

° Various Defendants challenge the district court’s decision to con-
sider the OIG reports to the extent that they are not contradicted by
the Complaint. Defendants are correct that a complaint “include[s|
any written instrument attached to it as an exhibit or any statements
or documents incorporated in it by reference.” Cortec Indus., Inc. v.
Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991); accord DiFolco v.
MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). But their ob-
jection misses the point. The district court accurately explained that
at the pleading stage, although we must consider the words on the

7a

OIG reports provide invaluable context for the unprece-
dented challenges following 9/11 and the various strate-
gies federal agencies employed to confront these chal-
lenges. The reports help orient our analysis of the Com-
plaint.
ILI. PLAINTIFFS’ ALLEGATIONS’

In the aftermath of the 9/11 attacks, the FBI and oth-
er agencies within the DOJ immediately initiated an im-
mense investigation aimed at identifying the 9/11 perpe-
trators and preventing any further attacks. See OIG Re-
port at 1, 11-12. PENTTBOM, the Pentagon/Twin Tow-
ers Bombings investigation, was initially run out of the
FBI’s field offices, but shortly thereafter, Mueller or-
dered that management of the investigation be switched
to the FBI’s Strategic Information and Operations Cen-
ter (the “SIOC”) at FBI Headquarters in Washington,
D.C. Mueller personally directed PENTTBOM from the
SIOC and remained in daily contact with FBI field of-
fices.

In conjunction with PENTTBOM, the Deputy Attor-
ney General’s Office (the “DAG’s Office”) established the

page (that is, we cannot disregard the fact that the OIG reports
make particular findings), we need not consider the truth of those
words to the extent disputed by Plaintiffs. See Turkmen ITT, 915 F.
Supp. 2d at 342 n.14 (citing DiFolco, 622 F.3d at 111). Even were we
to view the OIG reports as fully incorporated, reliance on any asser-
tion of fact requires a credibility assessment that we are fundament-
ally unsuited to undertake at the Rule 12(b)(6) stage. And although
the OIG reports cannot determinatively prove or disprove Plaintiffs’
allegations, they remain relevant to our analysis because they sup-
plement our understanding of the law enforcement response to 9/11.

‘The allegations set forth herein are drawn from the Complaint and
those portions of the OIG reports incorporated by reference. See
supra note 6. We presume the veracity of Plaintiffs’ well-pleaded al-
legations. /qbal, 556 U.S. at 679.

Sa

SIOC Working Group to coordinate “efforts among the
various components within the [DOJ] that had an investi-
gative interest in|,| or responsibility for|,| the September
11 detainees.” /d. at 15." The SIOC Working Group in-
cluded representatives from, among other agencies, the
FBI, the INS, and the DAG’s Office. This group met dai-
ly—if not multiple times in a single day—in the months
following 9/11; its duties included “coordinatjing] infor-
mation and evidence sharing among the FBI, INS, and
U.S. Attorneys’ offices” and “ensur{ing] that aliens de-
tained as part of the PENTTBOM investigation would
not be released until they were cleared by the FBI of in-
volvement with the September 1! attacks or terrorism in
general.” /d.

Given that the 9/11 hijackers were all foreign nation-
als, the DOJ response carried a major immigration law
component. See id. at 12. Ashcroft and Mueller devel-
oped “a policy whereby any Muslim or Arab man encoun-
tered during the investigation of a tip received in the 9/11
terrorism investigation ... and discovered to be a
non-citizen who had violated the terms of his visa, was
arrested.” Compl. 11; see also id. 1939-49. Ashcroft also
created the related “hold-until-cleared” policy, which
mandated that individuals arrested in the wake of 9/11
not be released from “custody until | FBI Headquarters |
affirmatively cleared them of terrorist ties.” /d. 12; see
also OIG Report at 38-39.

Within a week of 9/11, the FBI had received approxi-
mately 96,000 tips from civilians across the country.
These tips varied significantly in quality and reliability.’

* The SIOC Working Group acquired this name because its initial
meetings occurred at the FBI's SIOC.

* For instance, Turkmen came to the FBI's attention when his land-
lord called the FBI’s 9/11 hotline and reported “that she rented an

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“Mueller [nonetheless| ordered that every one of these
tips be investigated, even if they were implausible on
their face.” Compl. 140. Ultimately, 762 detainees were
placed on the INS Custody List (the “INS List”) that
then made them subject to 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 regular-
ly with a small group of government officials in Washing-
ton, D.C., and mapped out ways to exert maximum pres-
sure on the individuals arrested in connection with the
terrorism investigation.” /d. 161." This small group
“discussed and decided upon a strategy to restrict the
9/11 detainees’ ability to contact the outside world and

apartment in her home to several Middle Eastern men, and she
‘would feel awful if her tenants were involved in terrorism and she
didn’t call.” Compl. 9251. “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 over-
staffed, thus arousing the tipster’s suspicions about the “Middle
Eastern men” that worked there. OIG Report at 17.

It is unclear whether this “small group” refers to the SIOC Work-
ing Group or a distinct group involving Ashcroft, Mueller, and other
senior Washington, D.C., officials. One possibility is that Plaintiffs
are referring to the small group that consisted of Ashcroft, Mueller,
Michael Chertoff, who was then Assistant Attorney General of the
Criminal Division, and the Deputy Attorney General. See OIG Re-
port at 13. According to Chertoff, this group discussed the DOJ’s
post-9/11 law enforcement strategy and policies. Given the makeup
of this group and the SIOC Working Group, it is reasonable to infer
that information flowed between them; for instance, Chertoff’s depu-
ty, Alice Fisher, was placed in charge of immigration issues for the
Criminal Division and personally established the SIOC Working
Group.

10a
delay their immigration hearings. The group also decid-
ed to spread the word among law enforcement personnel
that the 9/11 detainees were suspected terrorists| | ...
and that they needed to be encouraged in any way possi-
ble to cooperate.” /d.

Plaintiffs, with the exception of Turkmen and Sachde-
va, were held at the MDC. Under MDC confinement pol-
icy, the 9/11 detainees placed in the MDC were held in
the MDC’s Administrative Maximum Special Housing
Unit (the “ADMAX SHU”)—“a particularly restrictive
type of SHU not found in most [Bureau of Prisons
(‘BOP’)| facilities because the normal SHU is usually suf-
ficient for correcting inmate misbehavior and addressing
security concerns.” /d. 176. The confinement policy was
created by the MDC Defendants “in consultation with
the FBI.” Jd. 1665.

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. 13;
“strip-searched every time they were removed from or
returned to their cell[s], ... even when they had no con-
ceivable opportunity to obtain contraband,” id. 1112;
provided with “meager and barely edible” food, id. 1128;
denied sleep by “bright lights” that were left on in their
cells for 24 hours a day, id. 1119, and, “[o}]n some occa-
sions, correctional officers walked by every 20 minutes
throughout the night, kicked the doors to wake up the de-
tainees, and yelled” highly degrading and offensive com-
ments, id. 1120; constructively denied recreation and ex-
posed to the elements, see id. 17122-23; “denied access to
basic hygiene items like toilet paper, soap, towels, tooth-
paste, [and] eating utensils,” id. 1130; and prohibited
from moving around the unit, using the telephone freely,

lla

using the commissary, or accessing MDC handbooks,
which explained how to file complaints about mistreat-
ment, see id. 1976, 83, 129, 140.

MDC staff also subjected the 9/11 detainees to fre-
quent physical and verbal abuse. The abuse included
slamming the 9/11 detainees into walls; bending or twist-
ing their arms, hands, wrists, and fingers; lifting them off
the ground by their arms; pulling on their arms and
handcuffs; stepping on their leg restraints; restraining
them with handcuffs and/or shackles even while in their
cells; and handling them in other rough and inappropri-
ate ways. See id. 1105; see also Supplemental OIG Re-
port at 8-28. MDC staff also referred to the 9/11 detain-
ees as “‘terrorists,’ and other offensive names; threat-
enfed] them with violence; curs[ed] at them; insult|ed|
their religion; and ma{de} humiliating sexual comments
during strip-searches.” Compl. 1109. Specifically, Plain-
tiffs and putative class members at the MDC were re-
ferred to by staff as “camel[s],” “fucking Muslims,” and
“Arabic asshole[s],” id. 19110, 147, 218.

The MDC Plaintiffs did not receive copies of the Ko-
ran for weeks or months after requesting them, and one
Plaintiff never received a copy, “pursuant to a written
MDC policy ... that prohibited the 9/11 detainees from
keeping anything, including a Koran, in their cell[s}.” /d.
1132. The MDC Plaintiffs were also “denied the Halal
food required by their Muslim faith.” /d. 7133. And
“MDC staff frequently interrupted Plaintiffs’ and class
members’ prayers,” including “by banging on cell doors,”
yelling derogatory comments, and mocking the detainees
while they prayed. /d. 1136.

The named MDC Plaintiffs’ individual experiences—
several of which are highlighted below—add further tex-

12a

ture to their collective allegations concerning the arrest
and confinement of the 9/11 detainees.

A. Anser Mehmood

Mehmood, a citizen of Pakistan and devout Muslim,
entered the United States on a business visa in 1989 with
his wife, Uzma, and their three children. After his visa
expired, Mehmood remained in the country and started a
trucking business that provided enough earnings to pur-
chase a home in New Jersey and to send funds to his
family in Pakistan. In 2000, while living in New Jersey,
he and Uzma had their fourth child. In May 2001, Uz-
ma’s brother—a United States citizen—submitted an
immigration petition for the entire family.

On the morning of October 3, 2001, Mehmood was
asleep with Uzma and their one-year-old son when FBI
and INS agents knocked on his door. The agents
searched Mehmood’s home and asked whether he “was
involved with a jihad.” Jd. 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 breastfeed-
ing. “The Agent told Mehmood that they had no choice
but to arrest one of the parents, but that Mehmood faced
a minor immigration violation only, and he would be out
on bail within days.” Jd. 1159.

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.”
Jd. 1162. “His left hand was broken during this incident”
and “[t]he guards threatened to kill him if he asked any
questions.” Jd. His experience in the ADMAX SHU

l3a

tracked that of other 9/11 detainees. For instance,
“Iw lhenever Mehmood was removed from his cell, he was
placed in handenffs, chains, and shackles. [our or more
MDC staff members typically escorted him to his desti-
nation, frequently inflicting unnecessary pain along the
way, for example, by banging him into the wall, dragging
him, carrying him, and stepping on his shackles and
pushing his face into the wall.” Jd. 1166. Neither the
FBI nor INS interviewed Mehmood following his arrest.
Mehmood was not released from the ADMAX SHU until

February 6, 2002.

B. Ahmed Khalifa

Khalifa, who had completed five years toward a medi-
cal degree at the University of Alexandria in Egypt,
came to the United States on a student visa in July 2001.
He came to the FBI’s attention after the FBI received a
tip that “several Arabs who lived at Khalifa’s address
were renting a post-office box, and possibly sending out
large quantities of money.” /d. 1195. On September 30,
2001, FBI, INS, and officers from the New York City Po-
lice Department came to the apartment Khalifa shared
with several Egyptian friends. The officers searched his
wallet and apparently became “very interested in a list of
phone numbers of friends in Egypt.” Jd. 1196. After
searching the apartment, the agents asked Khalifa for his
passport and “if he had anything to do with September
11.” Jd. 1197. One FBI agent told Khalifa that they
were only interested in three of his roommates, but an-
other agent said they also needed Khalifa, whom they ar-
rested for “working without authorization.” /d.

On October 1, 2001, after briefly stopping at a local
INS detention facility to complete paperwork, Khalifa
and his roommates were transported to the MDC. When
he arrived at the MDC, Khalifa “was slammed into the

l4a

wall, pushed and kicked by MDC officers and placed into
a wet cell, with a mattress on the floor.” /d. 1201. “{His]
wrists were cut and bruised from his handcuffs, and he
was worried about other detainees, whom he heard gasp-
ing and moaning through the walls of his cell.” /d.

FBI and INS agents interviewed Khalifa on October 7,
2001. One of the agents apologized to Khalifa after notic-
ing the bruises on his wrists. When Khalifa stated that
MDC guards were abusing him, the agents “stated it was
because he was Muslim.” Jd. 1202. In notes from the in-
terview, the agents did not question Khalifa’s credibility,
and noted no suspicion of ties to terrorism or interest in
him in connection with PENTTBOM.

Following the interview, MDC guards strip searched
Khalifa and “laughed when they made him bend over and
spread his buttocks.” Jd. 1203. Khalifa complains of the
conditions associated with detention in the ADMAX
SHU, including arbitrary and abusive strip searches,
sleep deprivation, constructive denial of recreational ac-
tivities and hygiene items, and deprivation of food and
medical attention.

By November 5, 2001, the New York FBI field office
affirmatively cleared Khalifa of any ties to terrorism and
sent his name to 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,
New York, for five years, working various odd jobs to
send money home to his wife and sons in Nepal. Having

15a

planned to return home in the fall or winter of 2001, Ba-
jracharya used a video camera to capture the streets he
had come to know in New York. He came to the FBI's
attention on October 25, 2001, when a Queens County
District Attorney’s Office employee “observed an ‘{A]rab
male’ videotaping outside a Queens| | office building that
contained the Queens County District Attorney[’s] Office
and a New York FBI office.” Jd. 1230. When ap-
proached by investigators from the District Attorney’s
Office, Bajracharya tried to explain that he was a tourist.
The investigators took him inside the building and inter-
rogated him for five hours. FBI and INS agents arrived
at some point during the interrogation. Bajracharya
subsequently took the agents to his apartment; provided
them with his identification documents, which established
his country of origin; and admitted to overstaying his vi-
sa.

Apparently due to the videotaping, Bajracharya was
designated as being of “special interest” to the FBI and
on October 27, 2001, he was transported to the MDC. /d.
111 233-34. 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. 9235.
Bajracharya explained that he was not Muslim and knew
no Muslims. The FBI agent’s notes from the interview
do not question Bajracharya’s credibility or express any
suspicion of ties to terrorism. Two days later, the same
agent affirmatively cleared Bajracharya of any link to
terrorism. By November 5, 2001, the New York FBI
field office completed its investigation and forwarded
Bajracharya’s case to FBI Headquarters for final
clearance. Documents at FBI Headquarters note that

l6a

the FBI had no interest in Bajracharya by mid-
November 2001. Nonetheless, he was not released from
the ADMAX SHU until January 13, 2002. The FBI
agent assigned to Bajracharya’s case did not understand
why Bajracharya remained in the ADMAX SHU
throughout this period; the agent eventually called the
Legal Aid Society and advised an attorney that
Bajracharya needed legal representation.

Bajracharya, who is 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 due to the light in his cell, and
when he was removed from his cell, he would be placed in
handcuffs, chains, and shackles and escorted by four or
more MDC staff members. Bajracharya became so
traumatized by his experience in the ADMAX SHU that
he wept constantly. When an attorney requested that the
MDC transfer Bajracharya to general population, an
MDC “doctor responded that Bajracharya was crying too
much, and would cause a riot.” /d. 1241.

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

As originally articulated by Ashcroft, following 9/11,
the DOJ sought to prevent future terrorism by arresting
and detaining those people who “have been identified as
persons who participate in, or lend support to, terrorist
activities.” OIG Report at 12 (internal quotation marks
omitted). To that end, Michael Pearson, who was then
INS Executive Associate Commissioner for Field Opera-
tions, issued a series of Operational Orders, which ad-
dressed the responsibilities of INS agents operating with
the FBI to investigate leads on illegal aliens. A Septem-
ber 22, 2001 order instructed agents to “exercise sound
judgment” and to limit arrests to those aliens in whom

17a

the FBI had an “interest” and discouraged arrest in cas-
es that were “clearly of no interest in furthering the in-
vestigation of the terrorist attacks of September 11th.”
/d. at 45 (internal quotation marks omitted). The “of in-
terest” designation by an FBI agent had significant im-
plications for a detainee. “Of interest” detainees were
placed on the INS List, subject to the hold-until-cleared
policy, and required FBI clearance of any connection to
terrorism before they could be released or removed from
the United States. Detainees who were not designated
“of interest” to the FBI’s PENTTBOM investigation
were not placed on the INS List, did not require clear-
ance by the FBI, and could be processed according to
normal INS procedures. /d. at 40.

The arrest and detention mandate was not uniformly
implemented throughout the country. Specifically, the
New York FBI investigated all PENTTBOM leads with-
out vetting the initial tip and designated as “of interest”
“anyone picked up on a PENTTBOM lead .. . regardless
of the strength of the evidence or the origin of the lead.”
Id. at 41; see also Compl. 1143-45. For instance, days af-
ter 9/11, New York City police stopped three Middle
Eastern men in Manhattan on a traffic violation and
found plans to a public school in the car. The next day,
their employer confirmed that the men had the plans be-
cause they were performing construction work on the
school. Nonetheless, the men were arrested and de-
tained. See OIG Report at 42. In another instance, a
Middle Eastern man was arrested for illegally crossing
into the United States from Canada over a week before
9/11. After the attacks, the man was placed on New
York’s “‘special interest’ list even though a document in
his file, dated September 26, 2001, stated that FBI New

18a

York had no knowledge of the basis for his detention.”
/d. at 64 (internal quotation marks omitted).

In many cases, the New York FBI did not even at-
tempt to determine whether the alien was linked to ter-
rorism, see id. at 14, 16, 41-42, 47, and it “never labeled a
detainee ‘no interest’ until after the clearance process
was complete,” id. at 18 (emphasis added). Thus, aliens
encountered and arrested pursuant to a PENTTBOM
lead in New York were designated “of interest” (or spe-
cial interest) and held until the local field office confirmed
they had no ties to terrorism. /d. at 14; see also id. at
53." The result was that the MDC Plaintiffs and others
similarly situated in New York were held at the MDC
ADMAX SHU as if they met the national “of interest”
designation. ‘These practices—specifically the absolute
lack of triage—appear to have been unique to New York.
See id. at 47, 56."

At some point in October 2001, INS representatives to
the SIOC Working Group learned that the New York
FBI was maintaining a separate list (the “New York
List”) of detainees who had not been included in the na-
tional INS List. One explanation for maintaining a sepa-
rate New York List was that the New York FBI could
not determine if the detainees had any connection with
terrorist activity. Jd. at 54.

The OIG Report indicates that 491 of the 762 detainees were ar-
rested in New York. OIG Report at 21-22. However, the OIG Re-
port does not identify how many New York arrests were the result of
the New York FBI’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 loug tradition of independence from
their headquarters in Washington, D.C. See OIG Report at 54.

19a

After INS Headquarters learned of the separate New
York List, small groups of senior officials from the DAG’s
Office, the FBI, and the INS convened on at least two oc-
easions in October and November 2001 to suggest how to
deal with the two separate lists of detainees. In dis-
cussing how to address the New York List, “officials at
the INS, FBI, and [DOJ] raised concerns about, among
other things, whether the aliens [on the New York List]
had any nexus to terrorism.” /d. at 53. Nonetheless, this
list was merged with the INS List due to the concern
that absent further investigation, “the FBI could unwit-
tingly permit a dangerous individual to leave the United
States.” /d. The decision to merge the lists ensured that
some of the individuals on the New York List would re-
main detained in the challenged conditions of confine-
ment as if there were some suspicion that those individu-
als were tied to terrorism, even though no such suspicion
existed.

V. THE ISSUES ON APPEAL

In a January 15, 2013 Memorandum and Order, the
district court granted in part and denied in part Defend-
ants’ motions to dismiss the Complaint. The district
court dismissed all claims against the DOJ Defendants.
As to the MDC Defendants, the district court denied
their motions to dismiss Plaintiffs’ substantive due pro-
cess conditions of confinement claim (Claim 1); equal pro-
tection conditions of confinement claim (Claim 2); free
exercise claim (Claim 3); unreasonable strip search claim
(Claim 6); and conspiracy claim under 42 U.S.C. § 1985(3)
(Claim 7). See Turkmen 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
5A(b) of the Federal Rules of Civil Procedure."
DISCUSSION"

I. 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. Although plausibil-
ity is not a “probability requirement,” Plaintiffs must al-
lege facts that permit “more than a sheer possibility that
a defendant has acted unlawfully.” /d. (internal quota-
tion marks omitted). Factual allegations that are “mere-
ly consistent with” unlawful conduct do not create a rea-
sonable inference of liability. /d.

Moreover, “{t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory state-
ments, do not suffice.” /d. Well-pleaded factual allega-
tions, in contrast, should be presumed true, and we must
determine “whether they plausibly give rise to an entitle-
ment to relief.” /d. at 679. Ultimately, every plausibility
determination is a “context-specific task that requires the
reviewing court to draw on its judicial experience and
common sense.” /d.

With the exception of the Section 1985 conspiracy
claim, all of Plaintiffs’ claims allege constitutional viola-
tions based on injuries first recognized by the Supreme
Court in Bivens, 403 U.S. at 388. During the course of
this litigation, the Supreme Court made it clear in /qbal

* Plaintiffs have not appealed the district court’s dismissal of their
interference with counsel claims (Claims 4 and 5).

' We review the district court’s determination of Defendants’ Rule
12(b)(6) motions to dismiss de novo. See Papelino v. Albany Coll. of
Pharmacy of Union Univ., 633 F.3d 81, 88 (2d Cir. 2011).

Z2la
that a federal tortfeasor’s Bivens liability cannot be
premised on vicarious liability. 556 U.S. at 676. Thus,
Plaintiffs must plausibly plead that each Defendant,
“through the official’s own individual actions,” violated
Plaintiffs’ constitutional rights. /d. In other words,
Bivens relief is available only against federal officials
who are personally liable for the alleged constitutional
tort. Jd. at 676-77. Iqbal precludes relying on a supervi-
sor’s mere knowledge of a subordinate’s mental state
(z.e., discriminatory or punitive intent) to infer that the
supervisor shared that intent. /d. at 677. Knowing that a
subordinate engaged in a rogue discriminatory or puni-
tive act is not enough. But that is not to say that where
the supervisor condones or ratifies a subordinate’s dis-
criminatory or punitive actions the supervisor is free of
Bivens’s reach. See id. at 683.

Il. AVAILABILITY OF A BIVENS REMEDY FOR PLAIN.

TIFFS’ CLAIMS

Unlike the MDC Defendants, none of the DOJ De-
fendants challenge the existence of a Bivens remedy in
their briefs to this Court. While the DOJ Defendants did
raise this issue below, and are represented by able coun-
sel on appeal, they have chosen to not offer that argu-
ment now as a further defense of their victory in the dis-
trict court. However, as the reader will later discover,
our dissenting colleague makes much of this defense,
raising it as her main objection to our resolution of the
appeal. Given the MDC Defendants’ arguments, as well
as the dissent’s decision to press the issue, legitimately
noting that a district court’s judgment can be affirmed on
any ground supported by the record, Dissenting Op., post
at 7 n.4 (citing Lotes Co. v. Hon Hai Precision Indus.
Co., 753 F.3d 395, 413 (2d Cir. 2014)), we think it appro-
priate to explain our conclusion that a Bivens remedy is

22a

available for the MDC Plaintiffs’ punitive conditions of
confinement and strip search claims against both the
DOJ and the MDC Defendants.

In Bivens, 403 U.S. at 388, the Supreme Court “recog-
nized for the first time an implied private action for dam-
ages against federal officers alleged to have violated a cit-
izen’s constitutional rights.” Corr. Servs. Corp. v. Ma-
lesko, 534 U.S. 61, 66 (2001). “The purpose of Bivens is to
deter individual federal officers from committing consti-
tutional violations.” /d. at 70. Because a Bivens claim
has judicial parentage, “the Supreme Court has warned
that the Bivens remedy is an extraordinary thing that
should rarely if ever be applied in new contexts.” Arar v.
Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (en banc) (in-
ternal quotation marks omitted). Thus, a Bivens remedy
is not available for all who allege injury from a federal of-
ficer’s violation of their constitutional rights.

In Arar, we outlined a two-step process for determin-
ing whether a Bivens remedy is available. First, the
court must determine whether the underlying claims ex-
tend Bivens into a “new context.” 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 remedial
scheme available to the plaintiff,” and, even if there is
not, (b) “whether special factors counsel hesitation in
creating a Bivens remedy.” /d. (internal quotation marks
and brackets omitted). As Arar noted, case law provides
limited guidance regarding how to determine whether a
claim presents a new context for Bivens purposes. Thus,
“{wle construe[d] the word ‘context’ as it is commonly
used in law: to reflect a potentially recurring scenario
that has similar legal and factual components.” /d.

Determining the “context” of a claim can be tricky.
The MDC Defendants contend that the context of Plain-

23a
tiffs’ claims is the nation’s “response to an unprecedented
terrorist attack.” Sherman Br. 45. The DOJ Defendants
made a similar argument before the district court in an
earlier round of this litigation. See Turkmen J, 2006 WL.
1662663, at *30. The MDC Defendants, and the dissent
on behalf of the DOJ Defendants, contend that Arr sup-
ports this view. But if that were the case, then why did
Arar take pains to note that the “context” of Arar’s
claims was not the nation’s continuing response to terror-
ism, but the acts of federal officials in carrying out Arar’s
extraordinary rendition? 585 F.3d at 572. We looked to
both the rights injured and the mechanism of the injury
to determine the context of Arar’s claims. In rejecting
the availability of a Bivens remedy, we focused on the
mechanism of his injury: extraordinary rendition—‘“a
distinct phenomenon in international law”—and deter-
mined this presented a new context for Bivens-based
claims. /d. Only upon concluding that extraordinary
rendition presented a new context did we examine the
policy concerns and competing remedial measures avail-
able to Arar. In our view, setting the context of the
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
present the “context” of their confinement—just as the
reason for Arar’s extraordinary rendition did not present
the context of his claim. Without doubt, 9/11 presented
unrivaled challenges and severe exigencies—but that
does not change the “context” of Plaintiffs’ claims.
“|M ost of the rights that the Plaintiff[s] contend| ] were
violated do not vary with surrounding circumstances,
such as the right not to be subjected to needlessly harsh
conditions of confinement, the right to be free from the
use of excessive force, and the right not to be subjected

24a

to ethnic or religious discrimination. The strength of our
system of constitutional rights derives from the steadfast
protection of those rights in both normal and unusual
times.” /qbal v. Hasty (Hasty), 490 F.3d 143, 159 (2d Cir.
2007), rev’d on other grounds sub nom. /qbal, 556 U.S.
662.

Thus, we think it plain that the MDC Plaintiffs’ condi-
tions of confinement claims are set in the following con-
text: federal detainee Plaintiffs, housed in a federal facili-
ty, allege that individual federal officers subjected them
to punitive conditions. This context takes account of both
the rights injured (here, substantive due process and
equal protection rights) and the mechanism of injury
(punitive conditions without sufficient cause). The
claim—that individual officers violated detainees’ consti-
tutional rights by subjecting them to harsh treatment
with impermissible intent or without sufficient cause—
stands firmly within a familiar Bivens context. Both the
Supreme Court and this Circuit have recognized a Bivens
remedy for constitutional challenges to conditions of con-
finement. In Carlson v. Green, 446 U.S. 14, 17-20 (1980),

'° The rights-injured component of Flaintiffs’ claims fall within a rec-
ognized Bivens context. This Circuit has presumed the availability
of a Bivens remedy for substantive due process claims in several
cases. See Arar, 585 F.3d at 598 (Sack, J., dissenting) (citing cases).
In addition, .he Supreme Court has acknowledged the availability of
“a Bivens action to redress a violation of the equal protection com-
ponent of the Due Process Clause of the Fifth Amendment.” Jqbai,
556 U.S. at 675 (citing Davis v. Passman, 442 U.S. 228 (1979)). And
while it is true that the Supreme Court has subsequently declined to
extend Davis to other employment discrimination claims, such as in
Chappell v. Wallace, 462 U.S. 296, 300-04 (1983), the Court’s analysis
was focused on the special nature of the employer-employee rela-
tionship in the military—or, in other words, the mechanism of injury.
Here, where the mechanism of injury is also familiar, a Bivens rem-
edy is plainly available.

25a

the Supreme Court recognized an implied remedy for the
plaintiff's claim alleging an Eighth Amendment violation
for prisoner mistreatment. Furthermore, in Malesko, in
refusing to extend a Bivens remedy to claims against pri-
vate corporations housing federal detainees, the Supreme
Court observed in dicta that, while no claim was available
against the private corporation, a federal prisoner would
have a remedy against federal officials for constitutional
claims. 534 U.S. at 72. “If a federal prisoner in a BOP
facility alleges a constitutional deprivation, he may bring
a Bivens claim against the offending individual officer,
subject to the defense of qualified immunity.” Jd. The
Court went on to recognize that the “prisoner may not
bring a Bivens claim against the officer’s employer, the
United States, or the BOP.” Jd. The MDC Plaintiffs’
claims here plainly follow Malesko’s guidance: the claims
are raised against the individual officers, both at the DOJ
and the MDC, who were responsible for subjecting the
Plaintiffs to punitive conditions of confinement.

The Second Circuit has also recognized the availability
of Bivens relief for federal prisoners housed in federal
facilities bringing claims against individual federal offi-
cers. In Thomas v. Ashcroft, 470 F.3d 491, 497 (2d Cir.
2006), this Court reversed the district court’s dismissal of
the prisoner plaintiff’s Bivens claim for violation of his
due process rights against supervisory prison officials.
See also Tellier v. Fields, 280 F.3d 69, 80-83 (2d Cir.
2000) (recognizing a Bivens remedy for a claim of depri-
vation of procedural due process brought by a federal
prisoner against federal prison officials). Furthermore,
in Hasty, where we considered claims nearly identical to
those at issue in this case, we “did not so much as hint ei-
ther that a Bivens remedy was unavailable or that its
availability would constitute an unwarranted extension of

26a

the Bivens doctrine.” Arar, 585 F.3d at 597 (Sack, J.,
dissenting) (discussing Hasty, 490 F.3d at 177-78).

Our sister circuits have also permitted Bivens claims
for unconstitutional conditions of confinement. In Cale v.
Johnson, 861 F.2d 9438, 947 (6th Cir. 1988), abrogated on
other grounds by Thaddeus-X v. Blatter, 175 F.3d 378
(6th Cir. 1999) (en banc), the Sixth Circuit held that “fed-
eral courts have the jurisdictional authority to entertain a
Bivens action brought by a federal prisoner, alleging vio-
lations of his right to substantive due process.” The
Third Circuit has also permitted a federal inmate to
bring a civil rights action against prison officials. See
Bistrian v. Levi, 696 F.3d 352, 372-75 (8d Cir. 2012) (as-
suming availability of a Bivens remedy for plaintiff’s
Fifth Amendment substantive due process and other
constitutional claims challenging his conditions of con-
finement).

Notwithstanding the persuasive precedent suggesting
the availability of a Bivens remedy for the MDC Plain-
tiffs’ conditions of confinement claims, the MDC Defend-
ants, and our dissenting colleague, argue that the MDC
Plaintiffs’ claims present a new Bivens context because
the Plaintiffs are illegal aliens. But because the MDC
Plaintiffs’ right to be free from punitive conditions of con-
finement is coextensive with that of a citizen, their unlaw-
ful presence in the United States at the time of the chal-
lenged confinement does not place their standard mis-
treatment claim into a new context. Indeed, the Fifth
Circuit has recognized a Bivens claim raised by a Mexi-
can national for violations of her Fourth and Fifth
Amendment rights to be free from false imprisonment
and the use of excessive force by law enforcement per-
sonnel. See Martinez-Aguero v. Gonzalez, 459 F.3d 618,
625 (5th Cir. 2006). The Ninth Circuit has also recog-

27a

nized a Bivens claim for due process violations that oc-
curred during an illegal alien plaintiff’s detention. See
Papa v. United States, 281 F.3d 1004, 1010-11 (9th Cir.
2002). Thus, we conclude that a Bivens remedy is avail-
able for the Plaintiffs’ substantive due process and equal
protection conditions of confinement claims.

Our understanding of Bivens and this Court’s decision
in Arar do not however suggest the availability of a
Bivens remedy for the Plaintiffs’ free exercise claim.
That claim—that Defendants deliberately interfered with
Plaintiffs’ religious practices by: (1) denying them timely
access to copies of the Koran; (2) denying them Halal
food; and (3) failing to stop MDC staff from interfering
with Plaintiffs’ prayers—does not fall within a familiar
Bivens context. Here, it is the right injured—Plaintiffs’
free exercise right—and not the mechanism of injury
that places Plaintiffs’ claims in a new Bivens context. In-
deed, the Supreme Court has “not found an implied dam-
ages remedy under the Free Exercise Clause” and has
“declined to extend Bivens to a claim sounding in the
First Amendment.” /qbal, 556 U.S. at 675 (citing Bush v.
Lucas, 462 U.S. 367 (1983)). Accordingly, we agree with
the MDC Defendants that Plaintiffs’ free exercise claim
should have been dismissed.

But the MDC Plaintiffs’ claim that they were subject-
ed to unlawful strip searches falls within an established
Bivens context: federal detainee plaintiffs, housed in a

“ We note that the Ninth Circuit has declined to provide illegal al-
iens with an implied Bivens remedy for unlawful detention during
deportation proceedings. Mirmehdi v. United States, 689 F.3d 975,
981-83 (9th Cir. 2012). Of course, that decision is plainly inapposite
here where the MDC Plaintiffs do not challenge the fact that they
were detained, but rather the conditions in which they were de-
tained.

28a

federal facility, allege that individual federal officers sub-
jected them to unreasonable searches in violation of the
Fourth Amendment. The MDC Defendants fail to per-
suasively explain why recognizing the MDC Plaintiffs’
unlawful strip search claim would extend Bivens to a new
context. Indeed, the right violated certainly falls within a
recognized Bivens context: the Fourth Amendment is at
the core of the Bivens jurisprudence, as Bivens itself
concerned a Fourth Amendment claim. In Bivens, the
plaintiff brought a Fourth Amendment claim for the de-
fendants’ use of unreasonable force without probable
cause, resulting in the plaintiff’s unlawful arrest. 403
U.S. at 389-90; see also Groh v. Ramirez, 540 U.S. 551,
555 (2004) (recognizing the availability of a Bivens reme-
dy for a Fourth Amendment claim of an unreasonable
search, as a result of a facially invalid warrant). This
Circuit has also permitted Bivens relief for Fourth
Amendment claims involving unreasonable searches.
See, e.g., Castro v. United States, 34 F.3d 106, 107 (2d
Cir. 1994). And the mechanism of the violation—here, an
unreasonable search performed by a prison official—has
also been recognized by this Circuit. Indeed, in Arar, we
stated that “[iJn the small number of contexts in which
courts have implied a Bivens remedy, it has often been
easy to identify both the line between constitutional and
unconstitutional conduct, and the alternative course
which officers should have pursued .... [T]he immigra-
tion officer who subjected an alien to multiple strip
searches without cause should have left the alien in his
clothes.” 585 F.3d at 580; see also Hasty, 490 F.3d at
170-73 (assuming the existence of a Bivens remedy to
challenge strip searches under the Fourth Amendment).

Accordingly, we conclude that a Bivens remedy is
available for Plaintiffs’ conditions of confinement claims,

29a

under both the Due Process and Equal Protection Claus-
es of the Fifth Amendment, and Fourth Amendment un

reasonable and punitive strip searches claim." However,
Plaintiffs’ free exercise claim would require extending
Bivens to a new context, a move we decline to make ab

sent guidance from the Supreme Court.

III. CLAIM 1: SUBSTANTIVE DUE PROCESS CONDITIONS

Or CONFINEMENT
The MDC Plaintiffs allege that the harsh conditions of
confinement in the MDC violated their Fifth Amendment
substantive due process rights and that all Defendants
are liable for this harm." Plaintiffs present distinct theo-
ries of liability as to the DOJ and MDC Defendants.

A. Applicable Legal Standard

The Fifth Amendment’s Due Process Clause forbids
subjecting pretrial detainees to punitive restrictions or
conditions. See Bell v. Wolfish (Wolfish), 441 U.S. 520,
535 & n.16 (1979). Plaintiffs must plausibly plead that
Defendants, (1) with punitive intent, (2) personally en-
gaged in conduct that caused the challenged conditions of

" Because we conclude that Plaintiffs’ substantive due process, equal
protection, and unreasonable punitive strip searches claims do not
extend Bivens to a new context, we need not address “whether there
is an alternative remedial scheme available to the plaintiff” or
“whether special factors counsel hesitation in creating a Bivens rem-
edy.” Arar, 585 F.3d at 572 (internal quotation marks and brackets
omitted).

“ Turkmen and Sachdeva, the Passaic Plaintiffs, do not bring a sub-
stantive due process conditions of confinement claim or unreasonable
strip search claim (Claims 1 and 6).

” The parties have not argued for a different standard in this appeal.
Accordingly, we do not address whether the rights of civil immigra-
tion detainees should be governed by a standard that is even more
protective than the standard that applies to pretrial criminal detain-
ees.

30a

confinement. See zd. at 538; see also /gbal, 556 U.S. at
676-77. Absent “an expressed intent to punish,” Wolfish,
441 U.S. at 5388, we may only infer that Defendants acted
with punitive intent if the challenged conditions were
“not reasonably related to a legitimate goal—if [they
were] arbitrary or purposeless,” id. at 539.

B. The DOJ Defendants

While the DOJ Defendants do not raise a no-Bivens-
claim defense, they do forcefully contest liability here
with powerful post-/qbal assertions that “the former At-
torney General and FBI Director did not themselves re-
quire or specify any of the particular conditions set forth
in the complaint. And they cannot be held liable on what
amounts to a theory of respondeat superior for the ac-
tions of others who may have imposed those conditions.”
Ashcroft & Mueller Br. 10. They contend that because
the former Attorney General’s initial detention order was
constitutional, having been approved by the Supreme
Court in /gbal, the DOJ Defendants were “entitled to
presume that the facially constitutional policy would in
turn be implemented lawfully ....” Jd. at 9. We agree
... to a 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 de-
tainees would be held, without direction from the FBI or
elsewhere). The MDC Plaintiffs similarly fail to plead
that Ashcroft’s initial arrest and detention mandate re-
quired subordinates to apply excessively restrictive con-
ditions to civil detainees against whom the government
lacked individualized suspicion of terrorism. Given the
mandate’s facial validity, the DOJ Defendants had a right

sla

to presume that subordinates would carry it out in a con-
stitutional manner. See A/-Jundi vy. E’'state of Rockefel-
icy, 885 F.2d 1060, 1065-66 (2d Cir. 1989). But that is not
the end of the matter.

The MDC Plaintiffs plausibly plead that the DOJ De-
fendants were aware that illegal aliens were being de-
tained in punitive conditions of confinement in New York
and further knew that there was no suggestion that those
detainees were tied to terrorism except for the fact that
they were, or were perceived to be, Arab or Muslim.”
The MDC Plaintiffs further allege that while knowing
these facts, the DOJ Defendants were responsible for a
decision to merge the New York List with the national
INS List, which contained the names of detainees whose
detention was dependent not only on their illegal immi-
grant status and their perceived Arab or Muslim affilia-
tion, but also a suspicion that they were connected to ter-
rorist activities. The merger ensured that the MDC

” The dissent counters that “[tJhis is not apparent in the record,” cit-
ing Plaintiff Bajracharya’s videotaping of a building in Queens as ev-
idence of that Plaintiff’s possible tie to terrorism. Dissenting Op.,
post at 43 n.28. The dissent makes no mention, of course, of Plaintiff
Khalifa, who was told that the FBI was only interested in his room-
mates, but who was arrested and then detained in the ADMAX SITU
anyway, Compl. 1197; 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 breastfeed-
ing their son, id. 1159. The dissent further claims that detainees
were not sent to the ADMAX SHU based on their perceived race or
religion, but—as the OIG Report states—based on whether they
were designated of “high interest” to the PENTTROM investigation.
Dissenting Op., post at 44 n.28 (citing OIG Report at 18, 111). But,
as the dissent concedes, id., Plaintiffs’ well-pleaded Complaint spe-
cifically contradicts this point: the MDC Plaintiffs were detained in
the ADMAX SHU “even though they had not been classified ‘high
interest,’” Compl. # 4.

32a

Plaintiffs would continue to be confined in punitive condi-
tions. This is sufficient to plead a Fifth Amendment sub-
stantive due process violation.” Given the lack of indi-
vidualized suspicion, the decision to merge the lists was
not “reasonably related to a legitimate goal.” See Wolf-
ish, 441 U.S. at 539. The only reason why the MDC
Plaintiffs were held as if they were suspected of terror-
ism was because they were, or appeared to be, Arab or
Muslim. We conclude that this plausibly pleads punitive
intent. /d.
1. Punitive Conditions of Confinement

Contrary to the district court’s conclusion that Plain-
tiffs failed to “allege that the DOJ [DJefendants were
even aware of [the] conditions,” Turkmen ITT, 915 F.
Supp. 2d at 340, the Complaint and the OIG Report each
contain allegations of the DOJ Defendants’ knowledge of
the challenged conditions. Plaintiffs allege, inter alia,
that Mueller ran the 9/11 investigation out of FBI Head-
quarters; and that “Ashcroft, Mueller{,|] and Ziglar re-
ceived detailed daily reports of the arrests and deten-
tions,” Compl. 147; see also id. 1163-65.

The OIG Report makes plain the plausibility of Plain-
tiffs’ allegations. The “[DOJ] was aware of the BOP’s de-
cision to house the September 11 detainees in

* We acknowledge, as the dissent points out, that the MDC Plaintiffs
did not advance the “lists-merger theory” before this Court or the
district court. Dissenting Op., post at 43 n.28. Rather, they struc-
tured the Complaint to challenge Ashcroft’s arrest and detention
mandate as initially formulated and generally applied. In examining
the Complaint’s sufficiency, we have been clear that the pleadings
are inadequate to challenge the validity of the policy ab initio, but do
state a claim with regard to the merger decision, an event that Plain-
tiffs explicitly reference in the Complaint. See Compl. 147; Pls.’ Br.
38. Sufficiency analysis requires a careful parsing of the Complaint
and that is all that has occurred here.

33a
high-security sections in various BOP facilities.” OIG
Report at 19. The Deputy Chief of Staff to Ashcroft told
the OIG that an allegation of mistreatment was called to
the Attorney General’s attention. /d. at 20. And BOP
Director Kathy Hawk Sawyer stated that in the weeks
following 9/11, the Deputy Attorney General’s Chief of
Staff and the Principal Associate Deputy Attorney Gen-
eral “called her ... with concerns about detainees’ ability
to communicate both with those outside the facility and
with other inmates,” id. at 112, which she said confirmed
for her that the decision to house detainees in the restric-
tive conditions of the ADMAX SHU was appropriate, id.
at 112-113. This supports the reasonable inference that
not only was Ashcroft’s office aware of some of the condi-
tions imposed, but affirmatively supported them. See al-
so id. at 113 (DOJ officials told Sawyer to “take [BOP]
policies to their legal limit”). Furthermore, the OIG
Report also makes clear that conditions in the ADMAX
SHU began to receive media attention soon after deten-
tions began, see id. at 2, 5;” thus, it seems implausible

“ The dissent attempts to minimize the force of these comments,
claiming that communications about a condition of confinement that
was lifted before the merger decision cannot support an inference as
to what the DOJ Defendants knew about the conditions in the AD-
MAX SHU. Dissenting Op., posi at 56-57. Simply put, we disagree.
The fact remains that a condition of confinement, less severe and
abusive than the conditions at issue here, garnered the attention of
senior officials; it stands to reason that conditions that kept detain-
ces in their cells for twenty-three hours a day, denied them sleep by
bright lights, and involved excessive strip searches and physical
abuse, would have come to the DOJ Defendants’ attention.

” See, e.g., Neil A. Lewis, A Nation Challenged: The Detainees; De-
tentions After Attacks Pass 1,000, U.S. Says, N.Y. TIMES, Oct. 30,
2001, available at http:/Awww.nytimes.com/2001/10/30/us/a-nation
-challenged-the-detainees-detentionsafter-attacks-pass-1000-us-says

34a
that the public’s concerns did not reach the DOJ Defend-
ants’ desks.

Of course, we cannot say for certain that daily reports
given to Ashcroft and Mueller detailed the conditions at
the ADMAX SHU or that the daily meetings of the SIOC
Working Group (containing representatives from each of
the DOJ Defendants’ offices) discussed those conditions.
But on review of a motion to dismiss, Plaintiffs need not
prove their allegations; they must plausibly plead them.
At a minimum, a steady stream of information regarding
the challenged conditions flowed between the BOP and
senior DOJ officials. Given the MDC Plaintiffs’ allega-
tions, the media coverage of conditions at the MDC, and
the DOJ Defendants’ announced central roles in
PENTTBOM, it seems to us plausible that information
concerning conditions at the MDC, which held eighty-
four of the 9/11 detainees, reached the DOJ Defendants.”

-htm! (citing “common news reports of abuse involv|ing] mistreat-
ment of prisoners of Middle Eastern background at jails”).

“ Furthermore, the OIG reports were issued pursuant to the Office
of the Inspector General's responsibilities under the USA PATRIOT
Act, which was enacted on October 26, 2001. See OIG Report at 3
n.6. ihe PATRIOT Act, Section 1001, reads: “The Inspector Gen-
eral of the Department of Justice shall designate one official who
shall—{1) review information and receive complaints alleging abuses
of civil rights and civil liberties by employees and officials of the De-
partment of Justice.” PATRIOT Act, Pub. L. No. 107-56, § 1001, 115
Stat. 272 (2001). “On October 30, 2001, the OIG reviewed a newspa-
per article in which a September 11 detainee alleged he was physical-
ly abused when he arrived at the MDC on October 4, 2001. Based on
the allegations in the article, the OIG’s Investigations Division initi-
ated an investigation into the matter.” OIG Report at 144. It seems
to us most plausible that if the Ol1G—who is “under the authority, di-
rection, and control of the Attorney General with respect to audits or
investigations,” 5 U.S.C. App. 3 §8E(a)(1)}—was aware of the chal-
lenged conditions at the MDC, the DOJ Defendants were as well.

30a
2. Lack of Individualized Suspicion

The MDC Plaintiffs also plausibly plead that the DOJ
Defendants were aware that the FBI had not developed
any connection between some of the detainees and ter-
rorist activities. The Complaint and OIG Report both
make clear that the New York FBI arrested all
“out-of-status” aliens encountered—even coincidental-
ly—in the course of investigating a PENTTBOM lead.
OIG Report at 41-42, 69-70. These arrestees were
“deemed ‘of interest’ for purposes of the ‘hold until
cleared’ policy, regardless of the strength of the evidence
or the origin of the lead.” Jd. at 41. Those deemed of
“high interest” were sent to the MDC’s ADMAX SHU,
id. at 111, but “there was little consistency or precision to
the process that resulted in detainees being labeled ‘high
interest,’” id. at 158.”

Even if the DOJ Defendants were not initially aware
of this practice, the Complaint and OIG reports support
the reasonable inference that Ashcroft and Mueller
learned of it within weeks of 9/11. The Complaint clearly
alleges that the DOJ Defendants agreed that individuals
for whom the FBI could only articulate an immigration
law violation as a reason for detention—and for whom
the FBI had not developed any reliable tie to terrorism—
would continue to be treated as if the FBI had reason to
believe the detainees had ties to terrorist activity.
Compl. 167. Plaintiffs point to the detailed daily reports

® Even some detainees who were not labeled “high interest” were
nonetheless sent to the MDC’s ADMAX SHU. For example, “Ab-
basi, Bajracharya, Mehmood, and Khalifa{ ] were placed in the AD-
MAX SHU even though they had not been classified ‘high interest’
and despite the absence of any information indicating they were
dangerous or involved in terrorism, or any other legitimate reason
for such treatment.” Compl. 9 4.

36a

that the DOJ Defendants received regarding arrests and
detentions and allege that the DOJ Defendants “were
aware that the FBI had no information tying Plaintiffs
and class members to terrorism prior to treating them as
‘of interest’ to the PENTTBOM investigation.” /d. 147.
Indeed, they claim that Ashcroft, in particular, “insisted
on regular, detailed reporting on arrests”; they allege
that he received a daily “Attorney General’s Report” on
persons arrested. /d. 163. They further allege that it
was Ziglar who was ultimately responsible for providing
much of this information—which he gleaned from his
twice daily briefings with his staff regarding the 9/11 de-
tentions—to Ashcroft, indicating that he too was aware of
the lack of individualized suspicion. /d. 164.

Once again, the OIG reports also support the MDC
Plaintiffs’ allegation that the DOJ Defendants became
aware of the lack of individualized suspicion for some de-
tainees held in the challenged conditions of confinement.
The OIG Report states that “[a] variety of INS, FBI, and
| DOJ] officials who worked on the| | September 11 de-
tainee cases told the OIG that it soon became evident
that many of the people arrested during the
PENTTBOM investigation might not have a nexus to
terrorism.” OIG Report at 45. Other DOJ officials also
stated that it “soon became clear” that only some of the
detainees were of “genuine investigative interest”—as
opposed to aliens identified by the FBI as “of interest”
for whom the FBI had no suspicion of a connection to the
attacks or terrorism in general. /d. at 47.

The OIG Report supports the reasonable inference
that this information, known by other DOJ officials, came
to the attention of the DOJ Defendants. In particular,
the OIG Report specifies that Ashcroft and Mueller were
involved in a “‘continuous meeting’ for the first few

37a

months” alter 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 SLOC
Working Group, containing representatives from the of-
fices of each of the DOJ Defendants, was aware of the
lack of evidence tying detainees to terrorism. /d. at 53-
57. As we have already noted, the OIG leport details
how at some point in October 2001, the SIOC Working
Group learned about the New York List and that “offi-
cials at the INS, FBI, and [DOJ] raised concerns about,
among other things, whether the aliens had any nexus to
terrorism.” /d. at 55. Clearly this created a major prob-
lem for the DOJ. The existence of the New York List
suddenly presented the possibility of more than doubling
the number of detainees subject to the hold-until-cleared
policy.” It seems quite plausible that DOJ officials would
confer with the Attorney General and the Director of the
FBI (it was, after all, his agents who were arresting
out-of-status Arab and Muslim aliens and holding them
as if they were “of interest” without any suspicion of ter-
rorist connections) about the problem of the New York
List and the hundreds of detainees picked up in contra-
vention of Ashcroft’s stated policy. Indeed, it seems to us
implausible they did not. Finally, the OIG Report once
again makes clear that media reports regarding allega-
tions of mistreatment of detainees alleged that detainees
remained in detention even though they had no involve-
ment in terrorism. /d. at 2, 5.

3. The Decision to Merge the Lists

Plaintiffs plausibly plead that, despite the DOJ De-
fendants’ knowledge of the conditions at the ADMAX

* In October and November of 2001, the New York List contained
approximately 300 detainees while the INS List for the rest of the
nation contained only 200 detainees. OIG Report at 54.

38a

SHU and the lack of any form of verified suspicion for a
large number of those detainees on the New York List,
Ashcroft approved, or at least endorsed, a decision to
merge the New York List. The MDC Plaintiffs contend
that he did so notwithstanding vocal opposition from var-
ious internal sources. The Complaint clearly alleges that
“{algainst significant internal criticism from INS agents
and other federal employees involved in the sweeps, Ash-
croft ordered that, despite a complete lack of any infor-
mation or a statement of FBI interest, all such Plaintiffs
and class members [on the New York List] be detained
until cleared and otherwise treated as ‘of interest.’”
Compl. 147. By taking this action, Ashcroft ensured that
some of the individuals on the New York List would be
placed in, or remain detained in, the challenged condi-
tions of confinement.

Our dissenting colleague levels a concern as to the im-
port of the merger of the lists and counters that nothing
in the OIG reports confirms Ashcroft’s personal
knowledge of the correlation between the merger of the
lists and the lack of individualized suspicion as to the
MDC Plaintiffs. The dissent contends that, because
Plaintiffs’ allegations are not based on personal know-
ledge, there is no factual basis in the record for them.
Dissenting Op., post at 45. True enough that Ashcroft
did not acknowledge that he was aware of the merger of
the lists and its implication for the MDC Plaintiffs, nor
did he take responsibility for it. But then again a review
of the OIG Report gives no indication that anybody asked
him.

The absence of an inquiry to the former Attorney
General is not a criticism of the Office of the Inspector
General’s methods, but a simple recognition of a fact that
points out a key difference between our view of the OIG

39a

reports and that of the dissent. For us, the OIG reports
provide context for the allegations of the Complaint. See
supra note 6, However, it would be a mistake to think of
the OIG reports as a repository of all relevant facts of
that troubled time; but that is exactly what the dissent.
seems inclined to do. The dissent measures plausibility
by the absence or presence of fact-findings in the OIG
reports. Thus, for the dissent, the fact that the Attorney
General may not have been questioned is confirmation
that he knew nothing. The reports make no such asser-
tion.

It may be that following discovery it will be clear that
Ashcroft was not responsible for the merger decision
(nor was Mueller or Ziglar), but that is not the question
at the pleading stage. The question is whether the MDC
Plaintiffs plausibly plead that Ashcroft was responsible.
Given the importance of the merger and its implications
for how his lawful original order was being carried out,
we think the MDC Plaintiffs plausibly allege that he was.

Indeed, the OIG Report supports the MDC Plaintiffs’
allegation that Ashcroft was responsible for the merger
decision. An incident at one of the New York List meet-
ings provides additional context that supports that alle-
gation. At the November 2, 2001 meeting, the group dis-
cussed the necessity of CIA checks, often a prerequisite
to a 9/11 detainee’s release from detention. OIG Report
at 55. In response, Stuart Levey, the Associate Deputy
Attorney General responsible for oversight of immigra-
tion issues, stated that he had to “check” before com-
municating a decision on whether “any detainees could be
released without the CIA check.” Jd. at 56. This re-
sponse could reasonably indicate (a) a lack of authority to
respond to the question, or (b) that Levey wanted to con-
sider other views before making the decision. Because

40a

either is plausible, it is irrelevant that only inference (a)
supports the conclusion that Levey could not answer the
question on his own and had to take it to more senior offi-
cials.”’

Furthermore, in late November 2001, when the INS
Chief of Staff approached Levey about the CIA check
policy, Levey said that he “did not feel comfortable mak-
ing the decision about [the] request to change the CIA
check policy without additional input.” Jd. at 62. It
seems to us that if Levey was not comfortable changing
the CIA check policy without input from more senior offi-
cials, he certainly would not have been comfortable mak-
ing the decision on his own to double the number of de-
tainees subject to that policy in the first instance.”

The dissent argues that the OIG Report forecloses the
plausibility of the allegation that Levey brought the list-

* The OIG Report states that Levey specifically consulted David
Laufman, the Deputy Attorney General’s Chief of Staff. O1G Report
at 62. The dissent takes this as definitive proof that Ashcroft was not
consulted on this, or the merger, decision. Dissenting Op., post at
47-49. The dissent mischaracterizes our reference to the CIA checks
decision. We do not contend that Levey consulted Ashcroft about
that decision, nor do we need to. In our view, the fact that Levey
spoke to Laufman about that decision is not the end of the matter;
indeed, the only relevance of the CIA checks decision, period, is that
Levey was not capable of making it on his own, suggesting that he
also would not he alle to make the list-merger decision on his own.

* Indeed, Ziglar told the OIG that he contacted Ashcroft’s office on
November 7, 2001, to discuss concerns about the process of clearing
names from the INS Custody List, especially the impact that merg-
ing the lists would have on that process and said that “hased on these
and other contacts with senior Department officials, he believed the
Department was fully aware” of the INS’s concerns. OIG Report at
66-67. This also suggests that Levey had communicated those con-
cerns to Ashcroft, who nonetheless made the decision to merge the
lists.

4la

merger decision to Ashcroft because “Levey made the
lists-merger decision ‘[ajt the conclusion of the [Novem-
ber 2] meeting’ at which the subject was first raised to
him.” Dissenting Op., post at 49 (quoting OIG Report at
56). But the OIG Report does not indicate that the mer-
ger issue was first raised to Levey at the November 2
meeting. Rather, the OIG Report makes clear that the
issue of the New York List was discovered in October
2001,” and that the decision to merge the lists was com-
municated at the November 2 meeting. Thus, surely it is
plausible that Levey consulted with more senior officials,
including Ashcroft, priov to that meeting.” Of course,
discovery may show that Levey was solely responsible
for the decision. But, again, the question is whether
Plaintiffs’ allegations support the inference that the deci-
sion was Ashcroft’s; they do.

The MDC Plaintiffs’ allegations against Mueller and
Ziglar are also sufficient. The Complaint alleges, inter

” While the dissent’s observation that Levey did not attend the Oc-
tober 22, 2001 meeting during which the “problems presented by the
New York List” were discussed is accurate, it is also irrelevant. See
Dissenting Op., post at 49-50 (quoting OIG Report at 55). We do not
contend that Levey learned about the New York List at the October
22 meeting, but simply that he learned about it before the November
2 meeting, giving him time to consult with more senior officials, in-
cluding Ashcroft, before communicating a decision at that November
meeting. Indeed, one would think that Levey would not attend the
November 2 meeting without knowing its agenda.

” The dissent challenges the sufficiency of Plaintiffs’ allegations and
our reading of them as “wholly speculative.” Dissenting Op., post at
48. Of course, Plaintiffs have no way of knowing what Levey and
Ashcroft discussed; nor do we. Iqbal does not require as much, but
rather “sufficient factual matter, accepted as true” to allow the court
to draw the reasonable inference that Ashcroft was ultimately re-
sponsible for the decision. 556 U.S. at 678. We believe that Plaintiffs
have met this burden.

42a

alia, that Ashcroft made the decision to merge the lists in
spite of the lack of individualized suspicion linking the
MDC Plaintiffs to terrorism and that “Mueller and Ziglar
were fully informed of this decision, and complied with
it.” Compl. 147; see also id. 1955-57, 67. Mueller and
Ziglar are not exculpated from this claim merely because
Plaintiffs allege that they complied with, as opposed to
ordered, the list merger. Plaintiffs plausibly plead that
both were aware that the separate list contained detain-
ees for whom the FBI had asserted no interest and that
subjecting them to the challenged conditions would be fa-
cially unreasonable. Even if an official is not the source
of a challenged policy, that official can be held personally
liable for constitutional violations stemming from the ex-
ecution of his superior’s orders if those orders are facially
invalid or clearly illegal. See, e.g., Varrone v. Bilotti, 123
F.3d 75, 81 (2d Cir. 1997) (granting defendants qualified
immunity where there was “no claim that the order was
facially invalid or obviously illegal”). In this instance,
Plaintiffs plausibly allege that Ashcroft’s decision was fa-
cially invalid; it would be unreasonable for Mueller and
Ziglar to conclude that holding ordinary civil detainees
under the most restrictive conditions of confinement
available was lawful.

4. Punitive Intent

The MDC Plaintiffs must show not only that the DOJ
Defendants knew of and approved continued use of the
ADMAX SHU, but also that they did so with punitive in-
tent—that they endorsed the use of those conditions with
an intent to punish the MDC Plaintiffs. Federal courts
have long recognized that punitive intent is not often ad-
mitted. The Supreme Court has noted that it can be in-
ferred if the conditions of confinement are “not reasona-
bly related to a legitimate goal.” Wolfish, 441 U.S. at

43a

539. If the conditions under which one is held have no
reasonable connection to a legitimate goal of the state,
then one logical assumption is that they are imposed for
no other purpose than to punish. See id.

The DOJ Defendants argue that even if they knew of
the plight of the MDC Plaintiffs, the decision to continue
their confinement at the MDC under exceptionally harsh
conditions was motivated by national security concerns—
a legitimate worry during the days following the 9/11 at-
tacks—and not some animus directed at the MDC Plain-
tiffs. They seem to imply that once “national security”
concerns become a reason for holding someone, there is
no need to show a connection between those concerns and
the captive other than that the captive shares common
traits of the terrorist: illegal immigrant status and a per-
ceived Arab or Muslim affiliation. Indeed, our dissenting
colleague asserts that because the MDC Plaintiffs were,
or appeared to be, members of the group—Arab or Mus-
lim males—that was targeted for recruitment by al
Qaeda that they could be held in the ADMAX SHU with-
out any reasonable suspicion of terrorist activity. Dis-
senting Op., post at 64-65, 76-77. Under this view, the
MDC Plaintiffs were not held with punitive intent be-
cause there was no way to know that they were not in-
volved in terrorist activities. Simply being in the United
States illegally and being, or appearing to be, Arab or
Muslim was enough to justify detention in the most re-
strictive conditions of confinement available. Indeed,
Levey admitted that the decision to merge the lists, en-
suring that some of the 9/11 detainees would be subject
to the challenged harsh conditions of confinement, was
made because he “wanted to err on the side of caution so
that a terrorist would not be released by mistake.” OIG
Report at 56.

44a

This argument rests on the assumption that if an indi-
vidual was an out-of-status Arab or Muslim, and someone
called the FBI for even the most absurd reason, that in-
dividual was considered a possible threat to national se-
curity. It presumes, in essence, that all out-of-status Ar-
abs or Muslims were potential terrorists until proven
otherwise. It is built on a perception of a race and faith
that has no basis in fact. There was no legitimate gov-
ernmental purpose in holding someone in the most re-
strictive conditions of confinement available simply be-
cause he happened to be—or, worse yet, appeared to
be—Arab or Muslim.

To be clear, it is “no surprise”—nor is it constitutional-
ly problematic—that the enforcement of our immigration
laws in the wake of 9/11 had a “disparate, incidental im-
pact on Arab Muslims.” Jqbal, 556 U.S. at 682. And we
do not contend that Supreme Court, or our own, prece-
dent requires individualized suspicion to subject detain-
ees to generally restrictive conditions of confinement; re-
striction is an incident of detention. Rather, we simply
acknowledge that “if a restriction or condition is not rea-
sonably related to a legitimate goal—if it is arbitrary or
purposeless—a court permissibly may infer that the pur-
pose of the governmental action is punishment that may
not constitutionally be inflicted upon detainees gua de-
tainees.” Wolfish, 441 U.S. at 589. We believe, then, that
the challenged conditions—keeping detainees in their
cells for twenty-three hours a day, constructively denying
them recreation and exposing them to the elements, strip
searching them whenever they were removed from or re-
turned to their cells, denying them sleep by bright
lights—-were not reasonably related to a legitimate goal,
but rather were punitive and unconstitutional.

45a

While national security concerns could justify detain-
ing those individuals with suspected ties to terrorism in
these challenged conditions for the litany of reasons ar-
ticulated by the dissent, see Dissenting Op., post at 67-68,
these concerns do not justify detaining individuals solely
on the basis of an immigration violation and ther per-
ceived race or religion in those same conditions. Individ-
ualized suspicion is required here because, absent some
indication that the detainees had a tie to terrorism, the
restrictions or conditions of the ADMAX SHU were “ar-
bitrary or purposeless.” Wolfish, 441 U.S. at 539."

Indeed, in Wolfish, the Supreme Court acknowledged
that “loading a detainee with chains and shackles and
throwing him in a dungeon may ensure his |detention]
and preserve the security of the institution. But it would
be difficult to conceive of a situation where conditions so
harsh, employed to achieve objectives that could be ac-
complished in so many alternative and less harsh meth-
ods, would not support a conclusion that the purpose for
which they were imposed was to punish.” Jd. at 539 n.20.
That is the situation before us. Clearly detention condi-
tions less restrictive than the ADMAX SHU were feasi-

“ The dissent cites several cases that it claims demonstrate that in-
dividualized suspicion is not required for imposing restrictive condi-
tions of confinement. Dissenting Op., post at 62-63. We do not disa-
gree: individualized suspicion is not required to impose conditions
that are reasonably related to a legitimate governmental objective.
Wolfish, 441 U.S. at 539. Thus, in each of the cases cited by the dis-
sent, rather than announce that individualized suspicion was not re-
quired, the Supreme Court determined that the restrictions at issue
in each of those cases were related to the legitimate goal of prison
security and, therefore, were not punitive. Thus, the cases cited by
the dissent do not change our conclusion here, where the challenged
conditions—the most restrictive available and imposed on detainees
qua detainees—are not reasonably related to either the goal of pris-
on security, or national security.

46a

ble for the MDC Plaintiffs, given that the detainees held
in the Passaic facility “were not held in isoiation or oth-
erwise placed in restrictive confinement.” Compl. 166.
Placing the MDC Plaintiffs in chains and shackles and
throwing them in the ADMAX SHU ensured that they
posed no threat in the aftermath of 9/11; but we can reach
no conclusion other than that the DOJ Defendants’ deci-
sion to do so was made with punitive intent.

In view of the foregoing, we hold that the MDC Plain-
tiffs fail to plausibly plead a substantive due process
claim against the DOJ Defendants coextensive with the
entire post-9/11 investigation and reaching back to the
time of Plaintiffs’ initial detention. Nonetheless, Plain-
tiffs’ well-pleaded allegations, in conjunction with the
OIG Report’s documentation of events such as the New
York List controversy, render plausible the claim that by
the beginning of November 2001, Asheroft knew of, and
approved, the MDC Plaintiffs’ confinement under severe
conditions, and that Mueller and Ziglar complied with
Ashcroft’s order notwithstanding their knowledge that
the government had no evidence linking the MDC Plain-
tiffs to terrorist activity. Discovery may ultimately prove
otherwise, but for present purposes, the MDC Plaintiffs’
substantive due process claim—with the exception of the
temporal limitation noted above—may proceed against
the DOJ Defendants.

5. Qualified Immunity

A defendant is entitled to qualified immunity if he can
establish (1) that the complaint fails to plausibly plead
that the defendant personally violated the plaintiff’s con-
stitutional rights, or (2) that the right was not clearly es-
tablished at the time in question. See Pearson v. Calla-
han, 555 U.S. 228, 232 (2009); Varrone, 123 F.3d at 78
(noting that the qualified immunity inquiry turns, gener-

47a
ally, on the objective legal reasonableness of a defend-
ant’s actions).

For the reasons stated above, the MDC Plaintiffs
plausibly plead that the DOJ Defendants violated their
substantive due process rights. With regard to the sec-
ond prong of this inquiry, the law regarding the punish-
ment of pretrial detainees was clearly established in the
fall of 2001. As discussed, Wulfish. made clear that a par-
ticular condition or restriction of pretrial detention not
reasonably related to a legitimate governmental objective
is punishment in violation of the constitutional rights of
detainees. See 441 U.S. at 535-39 & n.20. And in Hasty,
this Court denied qualified immunity with respect to a
materially identical conditions claim against Hasty. 490
F.3d at 168-69. We explained that “(t]he right of pretrial
detainees to be free from punitive restraints was clearly
established at the time of the events in question, and no
reasonable officer could have thought that he could pun-
ish a pretrial detainee by subjecting him to the practices
and conditions alleged by the Plaintiff.” /d. at 169.

Hasty further rejected the argument that the post-
9/11 context warranted qualified immunity even if it was
otherwise unavailable. /d. at 159-60, 169. Recognizing
the “gravity of the situation” that 9/11 presented, we ex-
plained that qualified immunity remained inappropriate
because a pretrial detainee’s right to be free from pun-
ishment does not vary with the surrounding circumstanc-
es. /d. at 159. Nothing has undermined the logic or
precedential authority of our qualified immunity holding
in Hasty. We therefore conclude that the DOJ Defend-
ants are not entitled to qualified immunity on the MDC
Plaintiffs’ conditions of confinement claim.

48a

C. The MDC Defendants

In his opinion below, Judge Gleeson divided the MDC
Plaintiffs’ conditions of confinement claim against the
MDC Defendants into two categories: “official condi-
tions” allegations and “unofficial abuse” allegations. The
“official conditions” allegations concern express confine-
ment policies that the MDC Defendants approved and
implemented; the “unofficial abuse” allegations concern
the physical and verbal abuse that the MDC Defendants
employed or permitted their subordinates to employ. We
find this taxonomy helpful in analyzing the conditions
claim against Hasty, Sherman, and Zenk.”

l. Official Conditions

The MDC Plaintiffs generally allege that the “official
conditions” to which the MDC Defendants subjected
them constituted punishment. We do not address wheth-
er Plaintiffs have sufficiently alleged an express intent to
punish, but rather analyze whether they have plausibly
pleaded that (1) the MDC Defendants caused them to
suffer the challenged conditions, and that (2) the chal-
lenged conditions were “not reasonably related to a legit-
imate goal,” which allows us to infer punitive intent,
Wolfish, 441 U.S. at 539.

The MDC Plaintiffs plausibly plead that Hasty and
Sherman are personally responsible for and caused the
MDC Plaintiffs to suffer the challenged conditions. The
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. 1924, 75; see also id. 176 (de-

* Plaintiffs’ allegations against Zenk do not extend to the “unofficial
abuse” nor to any harm arising from the “official conditions” that oc-
curred prior to April 22, 2002, the date he became MDC Warden.

49a

z, 482 US. $42, 349 (187):
Renjomia v. Covghlin, 906 F.2d 571, 574 (1890), Llowever, because
intentional burdening of religious practices is involved here, the
Turner v. Saf ley standard does not apply.

* It may be possible to state a free evercise claim against govern-
ment officials whe cause a burden on a plaintiffs free exercise of his
religion not with the specific intent to burden that exercise but with

219a

The Complaint fails to plausibly plead that the DOJ
defendants intended to burden the plaintiffs’ free exer-
cise of their religion. As with plaintiffs’ substantive due
process claim, this claim appears to rest on an argument
that, because Lheir policy was implemented unconstitu-
tionally, they must have intended that result. Thus, for
the same reasons set forth in my discussion of the sub-
stantive due process claim, I conclude that the DOJ de-
fendants’ failure to specify that their policy be imple-
mented lawfully does not raise the reasonable inference
that they intended for the policy to be implemented un-
lawfully. Accordingly, | dismiss the free exercise claim
against the DOJ defendants.

b. The MDC Defendants

The MDC defendants are alleged to have implemented
policies (¢c.y., forbidding the MDC Detainees from keep-
ing any items, including the Koran, in their cells) that
burdened the exercise of their religion. They are also al-
leged to have failed to stop MDC guards from engaging
in abusive conduct unsanctioned by express policy (e.g.,
verbal and physical abuse) that further burdened the De-
tainees’ religious practices. The Complaint contends that
the MDC defendants engaged in such conduct with the
intent to suppress the MDC Detainees’ religious practic-
es.

the more general intent to subject people of a particular religion to
an adverse action on the basis of that religion. See /gbal, 556 U.S. at
676 (assuming that intentional discrimination with respect to place-
ment in the ADMAX SHU burdens free exercise rights) (citing
Lukumi, 508 US. at 540-41); cf. McDaniel v. Paty, 435 U.S. 628
(1978). This kind of more general religious discrimination claim does
not appear to be advanced by the plaintiffs in this case, and I thus do
not consider whether the Complaint might adequately plead such a
claim.

220a

With respect to the abusive conduct unsanctioned by
express policy, the plaintiffs have adequately pleaded
that the MDC defendants were deliberately indifferent to
the known risk that their subordinates, MDC prison
guards, would violate the Detainees’ free exercise rights.
Indeed, as with the First and Fifth Amendment claims
discussed above, the Complaint adequately alleges that
the MDC defendants were aware of the abusive conduct
of the MDC guards. See 1924-28. None of the MDC de-
fendants contest—and it cannot be reasonably contest-
ed—that this policy of inaction satisfies the strict scruti-
ny required under Lukuwmi. See 508 U.S. at 546. And
defendants’ inaction in the face of such outrageous abuse
suffices, at this stage, to render plausible plaintiffs’ alle-
gation that the MDC defendants intended to suppress
their religious practices and that the MDC defendants’
misconduct caused the plaintiffs’ injuries. With respect
to the burdens imposed as a matter of express policy, no
question exists that defendants’ actions caused the inju-
ries alleged and, as already established, the Complaint
adequately pleads intent. Finally, while it is possible that
these challenged restrictions may in fact be narrowly tai-
lored to a sufficiently important interest, this is not obvi-
ous on the face of the Complaint and defendants must
await discovery to so prove. See /gbal, 490 F.3d at 173-
74.

4. Qualified Immunity

I reject the MDC defendants’ argument that they are
entitled to qualified immunity. The plaintiffs’ right to a
reasonable opportunity to worship has long been clearly
established. See, e.g., Cruz v. Beto, 405 U.S. 319, 322
(1972) (“If Cruz was a Buddhist and if he was denied a
reasonable opportunity of pursuing his faith comparable
to the opportunity afforded fellow prisoners who adhere

221a

to conventional religious precepts, then there was palpa-
ble discrimination by the States against the Buddhist re-
ligion”); see also Salahuddin v. Coughlin, 993 F.2d 306,
308 (2d Cir. 1993) (holding that it is “well established that
prisoners have a constitutional right to participate in
congregate religious services.”). And if the well-pleaded
allegations of intentional interference with the plaintiffs’
religious practices are proven, no officer could reasona-
bly believe that the conduct at issue was lawful. Accord-
ingly, I conclude, as did the Second Circuit in Jgbal, that
the plaintiffs’ allegations in claim three “suffice to pre-
clude a qualified immunity defense at this stage of the
litigation.” 490 F.3d at 173.”

E. [sic] Claim Six: Unreasonable Strip Searches

(Fourth Amendment)”

The MDC plaintiffs also bring Fourth Amendment
claims against the MDC defendants for subjecting them
to unreasonable strip searches.” 9%1297-302. They allege
that they were strip-searched repeatedly and unneces-
sarily, in a humiliating and unreasonable manner.

” It bears emphasis that the qualified immunity defense to this claim
and the others as well may need to be revisited as the case progress-
es. | assume, as I must at this stage, the truth of the plaintiffs’ fac-
tual allegations. At later stages, more will be required of the plain-
tiffs, and if only some of their allegations are properly supported by
admissible evidence, the qualified immunity defense may be availa-
ble. See, e.g., Coley v. Smith, 441 F. App’x. 627, (11th Cir. 2011)
(failure to provide Muslim inmate with exact food he requested for
Eid-ul-Fitr feast on correct day did not violate clearly established
law).

* Plaintiffs also allege in Claim Six that the strip searches violated
their right to substantive due process. That aspect of the claim is
discussed above in tandem with Claim One.

“ Only Benatta and Hamouda assert this claim again Zenk.

222a

1. Elements of the Claim

In order to state a claim that the MDC defendants
subjected them to unreasonable strip searches in viola-
tion of the Fourth Amendment, the plaintiffs must plead
that the MDC defendants (1) caused them to be strip
searched and (2) that the strip searches were not reason-
ably related to legitimate penological interests. See
Covino v. Patrissi, 967 F.2d 73, 78 (2d Cir. 1992); /qbal,
490 F.3d at 172. A search conducted in an unreasonable
manner is not reasonably related to legitimate penologi-
cal interests. See Schmerber v. California, 384 U.S. 757,
768 (1966).

2. Sufficiency of the Allegations

The Complaint alleges that the searches were con-
ducted to punish and humiliate, without any penological
justification. The MDC plaintiffs allege that they were
strip searched every time they were removed from or re-
turned to their cells, including after non-contact legal and
social visits, and were subject to random strip searches
even while in their cells. They also allege that they were,
for example, strip searched multiple limes in a row—
even though they had no opportunity to aequire anything
between the strip searches—and verbally abused and
videotaped during the strip searches. The Complaint al-
leges that these scarches were conducted pursuant to a
facially unconstitutional policy created and implemented
by the MDC defendants.

The Complaint states an unreasonable search claim
against all of the MDC defendants. The defendants are
alleged to have created a policy that, by its terms, man-
dated searches that were untethered to any legitimate
penological purpose, see Hodges v. Stauley, 712 F.2d 34.
35 (2d Cir. 1985) (holding that consecutive body cavity
searches of inmates are unreasonable); Covino, 967 F.2d

223a

at 80 (searches used to harass and punish inmate are un-
reasonable); Bono v. Saxbe, 620 F.2d 609, 617 (7th Cir.
1980) (strip searches of inmates after non-contact visits
are unreasonable unless there is some risk that contra-
band will be smuggled into prison), and performed in a
humiliating manner, cf. Schmerber, 384 U.S. at 768. Ac-
cording to the Complaint, Hasty and Zenk ordered the
creation of an unreasonable and punitive strip search pol-
icy, and Cuciti, with the help of Sherman and Lopresti,
developed the specific policy. The MDC defendants do
not challenge the plausibility of these allegations, and
they clearly suffice to plead that each of the MDC de-
fendants’ own actions caused the unreasonable strip
searches alleged.

3. Qualified Immunity

The allegations against the MDC defendants state a
violation of clearly established Fourth Amendment law.
It was clearly established at the time that a strip search
policy designed to punish and humiliate was not reasona-
bly related to a legitimate penological purpose and thus
violated the Fourth Amendment, and no reasonable of-
ficer could have believed that the policy alleged was con-
stitutional. See /qbal, 490 F.3d at 173 (“It was clearly
established that ... strip and body-cavity searches be ra-
tionally related to legitimate government purposes.”);
Hodges, 712 F.2d at 35.

F. [sic] Claim Seven: Conspiracy to Violate Civil

Rights

Plaintiffs’ final claim is brought under 42 U.S.C.
§ 1985(3), which prohibits conspiracy “for the purpose of
depriving ... any person or class of person of the equal
protection of the laws,” and provides a private cause of
action against the alleged conspirators. The plaintiffs
allege that the DOJ defendants and, separately, the

224a

MDC defendants conspired together to hold them in the
harsh conditions of confinement discussed herein in viola-
tion of their equal protection rights.”
1. Elements of the Claim

To make out a claim under Section 1985, plaintiffs
must plead and prove four elements: “(1) a conspiracy;
(2) for the purpose of depriving, either directly or indi-
rectly, any person or class of persons of equal protection
of the laws, or of equal privileges and immunities under
the laws; (8) an act in furtherance of the conspiracy;
(4) whereby a person is either injured in his person or
property or deprived of any right of a citizen of the Unit-
ed States.” Mian v. Donaldson, Lufkin & Jenrette Sec.
Corp., 7 F.8d 1085, 1087 (2d Cir. 1995). The conspiracy
must be motivated by seme class-based animus. /qbal,
490 F.3d at 176 (citing Griffin v. Breckenridge, 408 U.S.
88, 102 (1971)).

2. Sufficiency of the Allegations

For the reasons set forth above, the plaintiffs plausi-
bly plead that Hasty, Zenk, Sherman, Lopresti, and Cu-
citi implemented the facially discriminatory harsh con-
finement policy and the interference with their free exer-

“ The defendants challenge whether this statute is applicable to
them as federal officials in their individual capacities. The Second
Circuit has held that, although it was not clearly established in 2001
that Section 1985 prohibited conspiracies among federal officials,
“federal officials could not reasonably have believed that it was legal-
ly permissible for them to conspire with other federal officials to de-
prive a person of equal protection of the laws” where the officials’
behavior “would violate the equal protection clause.” Jgbal, 490 F.3d
at 176. The defendants were thus on notice in 2001 that an allegation
of conspiracy could arise from their alleged treatment of the plain-
tiffs.

225a
cise of their religion, all as alleged in Claims One, Two,
Three, and Six. The same allegations state a claim for a
conspiracy motivated by class based animus and, accord-
ingly, I conclude plaintiffs’ §1985(3) claim is plausibly
pleaded as against these MDC Defendants only. See /q-
bal, 490 F.3d at 177.

3. Qualified Immunity

Defendants also suggest that they are entitled to qual-
ified immunity because in 2001 it was not clearly estab-
lished that Section 1985 applied to federal officials. As
the Second Circuit has already explained, however, al-
though it may not have been clearly established in 2001
that §1985 prohibited conspiracies among federal offi-
cials, “federal officials could not reasonably have believed
that it was legally permissible for them to conspire with
other federal officials to deprive a person of equal protec-
tion of the laws.” Jd. at 176. “[T]he proper inquiry is
whether the right itself—rather than its source—is clear-
ly established.” Russo v. City of Bridgeport, 479 F.3d
196, 212 (2d Cir. 2007) (emphases in original). According-
ly, qualified immunity is inappropriate.

CONCLUSION

For the reasons set forth above, defendants’ motions
to dismiss are denied in part and granted in part. The
motions filed by the DOJ defendants are granted in their
entirety. The motions filed by the MDC defendants are
granted in part and denied in part. Specifically, they are
denied with respect to the claims based on the alleged
harsh conditions of confinement and unlawful strip
searches (Claims One, Two and Six) and the free exercise
claim (Claim Three). They are granted with respect to
the claims based on the alleged communications blackout
and interference with counsel (Claims Four and Five).
Finally, the motion to dismiss the conspiracy claim

226a

(Claim Seven) is denied to the extent that the underlying
objects of the conspiracy in Claims One through Six have
survived the motion and granted to the extent they have
not.

Counsel for the remaining parties are directed to ap-
pear before Chief Magistrate Guld for a status confer-
ence on January 30, 2013 at 2:00 PM.

So ordered.

John Gleeson, U.S.D.J.

Dated: January 15, 2013
Brooklyn, New York

APPENDIX C

UNITED STATES COURT Of APPEALS
FOR THE SECOND CIRCUIT

No. 13-981-L

IBRAHIM TURKMEN, AKHIL SACHDEVA, AHMER IQBAL
ABBASI, ANSER MEHMOOD, BENAMAR BENATTA, AHMED
KHALIFA, SAEED HAMMOUDA, 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 MUELLER, FORMER DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION; JAMES W.
ZIGLAR, FORMER COMMISSIONER, IMMIGRATION AND
NATURALIZATION SERVICE,

Defendants-Cross-A ppellees,
SALVATORE LOPRESTI, FORMER METROPOLITAN

DETENTION CENTER CAPTAIN; JOSEPH CUCITI, FORMER
METROPOLITAN DETENTION CENTER LIEUTENANT,

Defendants.

(227a)

228a

At a stated term of the United States Court of Ap-
peals for the Second Circuit, held at the Thurgood
Marshall United States Courthouse, 40 Foley Square,
in the City of New York, on the 11th day of December,

two thousand fifteen.

PRESENT: DENNIS JACOBS,
JOSE A. CABRANES,
ROSEMARY S. POOLER,
REENA RAGGI,
RICHARD C. WESLEY,
PETER W. HALL,
DEBRA ANN LIVINGSTON,
GERARD E. LYNCH,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,

Circuit Judges.’

ORDER

Following disposition of this appeal, an active judge of
the Court requested a poll on whether to rehear the case
en banc. A poll having been conducted and there being
no majority favoring en banc review, rehearing en banc is
hereby DENIED.

' Robert A. Katzmann, Chie! Judge, took no part in the consideration
or decision of this case.

229a

Rosemary S. Pooler and Richard C. Wesley, Circuit
Judges, concur by opinion in the denial of rehearing en
banc.

Dennis Jacobs, José A. Cabranes, Reena Raggi, Peter
W. Hall, Debra Ann Livingston, and Christopher F.
Droney, Circuit Judges, dissent by opinion from the de-
nial of rehearing en banc.

FOR THE COURT:
CATHERINE O’HAGAN WOLFE, CLERK

ROSEMARY S. POOLER and RICHARD C. WESLEY, Circuit
Judges, concurring in the denial of rehearing en banc:

Our dissenting colleagues lament that the majority
opinion in this matter presents the first circuit decision in
the country allowing a Bivens claim for an “executive pol-
icy” enacted in response to a nationul emergency. We
disagree. The majority opinion acknowledges that /qhal
confirmed that it was constitutionally permissible for the
Attorney General to subject detainees with suspected
ties to terrorism to restrictive conditions of confinement.
The majority opinion is unanimous in concluding that
plaintiffs have no claim in that regard.

Our differences arise from the significance of what we
conclude is a plausibly pled allegation that the Attorney
General ratified the rogue acts of a number of field
agents in carrying out his lawful policy. The Attorney
General is alleged to have endorsed the restrictive de-
tention of a number of men who were Arabs or Muslims
or both—or those who appeared to fit those categories—
that resulted from the fear and frenzy in greater New
York following the 9/11 attacks in which suspicion was

230a
founded merely upon one’s faith, one’s appearance, or
one’s native tongue.

Moreover, the dissenters fail to note that two of the
defendants in this case ran the Metropolitan Detention
Center and are alleged to have filed false documents with
regard to the risk assessments of detainees and to have
encouraged a dangerous environment for those detainees
at the facility. As alleged in the complaint and doc-
umented by the Inspector General’s report and national
media, this included assaults, daily strip searches, and
numerous other degrading acts. All of these actions,
were they to have occurred in a regular prison envi-
ronment and been employed against an inmate not sus-
pected of posing any security risk, would have been con-
sidered unlawfully punitive. See Bell v. Wolfish, 441 U.S.
520, 539 (holding that particular conditions or restrictions
of pretrial detention must be reasonably related to a le-
gitimate governmental objective); see also, e.g., Stoude-
mire v. Mich. Dep't of Corrs., 705 F.3d 560, 574 (6th Cir.
2013) (“‘[A] strip search, by its very nature, constitutes
an extreme intrusion upon personal privacy, as well as an
offense to the dignity of the individual.’” (quoting Wood
v. Clemons, 89 F.3d 922, 928 (1st Cir. 1996)). This view
accords not only with /qbal, but also with both our own
prior precedent and the views expressed by several of
our sister circuits in the wake of /qbal. See, e.g., Walker
v. Schult, 717 F.3d 119, 125 (2d Cir. 2013); Dodds v.
Richardson, 614 F.3d 1185, 1199 (10th Cir. 2010); Starr v.
Baca, 652 F.3d 1202, 1208 (9th Cir. 2011).

This case has drawn this Court’s attention now for
over thirteen years. The majority opinion and dissent
have analyzed many arguments (including Judge Raggi’s
Bivens concerns, which were not even advanced by the
government) and hundreds of cases. The length of our

23la

efforts now fills many pages. In our view, it is time to
move the case forward.

DENNIS JACOBS, JOSE A. CABRANES, REENA RAGGI, PE-
TER W. HALL, DEBRA ANN LIVINGSTON, and CHRISTO-
PHER F. DRONEY, Circuit Judges, dissenting from the
denial of rehearing en banc:

In this case, a sharply divided panel makes our court
the first in the nation to imply a Bivens damages action’
against senior Executive Branch officials—ineludinge the
former Attorney General of the United States and the
Director of the FBI—for actions taken to safeguard our
country in the immediate aftermath of the 9/11 attacks.
See Trrvkincn v. Hasty, 789 F.3d 218 (2d Cir. 2015); id. at
265 (Raggi, J., dissenting in part). The question of
whether to rehear this case en banc has now evenly di-
vided the active judges of the court (6-6), which means
defendants’ petitions for rehearing will be denied. We six
judges who voted for rehearing respectfully dissent from
that denial.’

’ See Bivens v. Six Unknown Named Agents of Fed. Bureau of Nar-
cotics, 403 U.S. 388 (1971).

* Our court’s historic reluctance to revisit panel opinions en banc has
been questioned hoth in cases where we are the outlier in a cirenit
split, see 2002 Judicial Conference of the Second Circuit, Remarks
hy Justice Ginsburg, 221 F.LR.D. 38, 223 12002) (supgesting Second
Cirenit might be “a bit too resistant to en bane rehearing”), and in
cases Where we have deemed the igeues so important as to make Su-
preme Court review likely, ef. Ricci v. DeStejana, 530 F 3d 88, 93 (2d
Cir. 2008) (lacols, C.J., dissenting from denial of rehearing en bane)
(“Lf issues are important enough te warrant Supreme Court review,
they are important enough for our full Court to consider and decile
on the merits.”).

232a

The panel decision raises questions of exceptional im-
portance meriting further review. These concern our
court’s faithful adherence to controlling Supreme Court
precedent respecting (1) the narrow scope of Bivens ac-
tions, (2) the broad shield of qualified immunity, and (3)
the pleading standard for plausible claims. Judge Raggi
discusses each of these points in detail in her panel dis-
sent. See id. at 265-302. We incorporate that opinion
here, which allows us to avoid repeating its analysis in
summarizing our reasons for seeking en banc review.

* * +

In June 2001, the Supreme Court observed that the
threat of “terrorism” might demand “heightened def-
erence to the judgments of the political branches with
respect to matters of national security,” including “forms
of preventive detention” for illegal aliens. Zadvydas v.
Davis, 533 U.S. 678, 696 (2001). Less than three months
later, the deadliest terrorist attack in the history of this
nation—committed by aliens operating under foreign di-
rection—presented federal officials with what even the
panel majority acknowledges were “unprecedented cha-
llenges” in protecting our homeland from further harm.
Turkmen v. Hasty, 789 F.3d at 226.° Astoundingly, given
these circumstances, this court now implies a Bivens
damages action—a practice that is generally “dis-
favored,” Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009), and
usually “unjustified,” Wilkie v. Robbins, 551 U.S. 587, 550

* See Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (describing “vast”
federal investigation “to identify the assailants and prevent them
from attacking anew”); see also Turkmen v. Hasty, 789 F.3d at 277
n.19 (Raggi, J., dissenting in part) (discussing various events in five
months following 9/11 that fueled fear of further imminent terrorist
attacks).

233a
(2007)—to expose the former Attorney General, FBI Di-
rector, and other federal officials to potentially unlimited
personal liability for their efforts to provide such protec-
tion.*

We are the first court to use Bivens to this effect.
Four Courts of Appeals—for the Fourth, Seventh, Ninth,
and D.C. Circuits—have declined to extend Bivens to
suits against executive branch officials for national se-
curity actions taken after the 9/11 attacks. See Vance v.
Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en banc); Doe v.
Rumsfeld, F.3d 390 (D.C. Cir. 2012); Mirmehdi v.
United States, 689 F.3d 975 (9th Cir. 2012); Lebron v.
Rumsfeld, 670 F.3d 540 (4th Cir. 2012); see also Meshal
v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015); Ali v.
Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011); Rasul v. Myers,
563 F.3d 527 (D.C. Cir. 2009). The panel decision puts
this court at odds not only with these sister circuits, but
also with controlling Supreme Court precedent in the fol-
lowing three areas of law.

1. The Proper Scope of Bivens Actions

After implying damages actions against federal offi-
cials on three occasions in the decade between 1971 and
1980, the Supreme Court has never done so again.® Ra-
ther, it has consistently emphasized that Bivens actions
are limited to a few established contexts, and that those
contexts cannot be generalized to extend Bivens further.
See Wilkie v. Robbins, 551 U.S. at 549-50. Only by rede-

* It was the President of the United States who, by written instruc-
tions, assigned responsibility for homeland security after 9/11 to the
Attorney General and FBI Director, as well as to the CIA Director.
See id. at 273 n.9 (Raggi, J., dissenting in part).

° See id. at 267 (Raggi, J., dissenting in part) (tracing history of
Bivens actions in Supreme Court).

234a

fining the few established Bivens contexts at an imper-
missibly “high level of generality” has the panel majority
here been able to avuid its obligation to consider whether
a judicially implied damages action is “the best way” to
implement constitutional guarantees in the unprecedent-
ed legal and factual circumstances of this case. /d. at 500,
561-62 (requiring such judgment to extend Bivens, and
recognizing that Congress is usually in “far better posi-
tion” than courts to evaluate impact of new species of liti-
gation against those who act in public’s behalf).°

The majority thereby further avoids consideration of
various factors strongly counseling hesitation in ex-
tending Bivens here. See Bush v. Lucas, 462 U.S. 367,
378 (1983). These factors include the following:

(a) plaintiffs here challenge an executive policy, ra-
ther than individual rogue action, the typical
Bivens scenario;’

(b) the challenged policy implicates the executive’s
immigration authority;*

° See id. at 268-69 (Raggi, J., dissenting in part) (explaining why
generalization of Bivens contexts elides requirement for considered
judgment about “best way” to implement constitutional guarantees
in particular legal and factual! circumstances).

* See id. at 272-74 (Raggi, J., dissenting in part) (discussing why
Bivens has never been considered “‘proper vehicle for altering an
entity’s policy’” (quoting Correctional Servs. Corp. v. Malesko, 534
U.S. 61, 74 (2001))).

* See id. at 274-75 (Raggi, J., dissenting in part) (referencing Su-
preme Court’s recognition that “‘any policy toward aliens’” is so in-
terwoven with foreign relations, war powers, and other matters “‘so
exclusively entrusted to the political branches of government as to be
largely immune from judicial inquiry or interference’” absent con-
gressional authorization (quoting Harisiades v. Shaughnessy, 342
U.S. 580, 588-89 (1952))).

235a

(c) the policy further implicates the executive’s re-
sponsibility for national security, here exercised in
a time of crisis;* and
(d) Congress’s failure to provide a damages remedy
despite longstanding awareness of the concerns
raised in this lawsuit."°
In opposing en banc review, the members of the panel
majority attempt to minimize the significance of their
Bivens ruling by asserting that it does not extend to ex-
ecutive policy challenges but applies only to the Attorney
General’s alleged ratification of “the rogue acts of a num-
ber of field agents in carrying out his lawful policy.”
Pooler and Wesley, JJ., Op. Concurring in Denial of
Reh’g En Banc (“Pooler and Wesley, JJ., Op.”), ante at
[1]. The assertion is belied however both by (1) plaintiffs’
complaint, which specifically sues the Attorney General
and FBI Director for the policies they allegedly devel-
oped and created in response to the 9/11 attacks, see
Turkmen v. Hasty, 789 F.3d at 227, 263 (quoting Compl.
1939-49, 75); and (2) the majority’s own opinion, which
holds that plaintiffs can use a Bivens action against the
Attorney General, FBI Director, and others to challenge,
not any rogue actions by field agents, but the “MDC con-
finement policy” of holding 9/11 detainees in “‘particular-

* See id. at 275-78 (Raggi, J., dissenting in part) (quoting Supreme
Court’s observation that “‘[m]atters intimately related to. . . nation-
al security are rarely proper subjects for judicial intervention’” in
absence of congressional or constitutional authorization, such as ha-
beas corpus guarantee (quoting Haig v. Agee, 453 U.S. 280, 292
(1981), and citing Department of Navy v. Egan, 484 U.S. 518, 529-30
(1988))).

See id. at 278-80 (Raggi, J., dissenting in part) (tracing Congress’s
awareness).

236a

ly restrictive’” conditions until cleared of terrorist con-
nections, id. at 228 (emphasis added) (quoting Compl.
176); see «df. at 239 (concluding that pleadings plausibly
allege that Attorney General “affirmatively supported”
restrictive conditions).

Our concurring colleagues further confuse the issue by
lumping together certain challenged policy actions, e.g.
daily strip searches, with rogue conduct not authonmzed
by any policy, e.g. assaults. See Pooler and Wesley, JJ.,
Op., ante at [2]. Plaintiffs’ ability to use a /)/eirs action
agai

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0665%3A2. Public record. Not legal advice.