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

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OFFICE OF THE CLERK |

IN THE

Supreme Court of the United States

DENNIS HASTY AND JAMES SHERMAN,

Petitioners,

AHMER IQBAL ABBASI, FT AL.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF FOR PETITIONERS

DENNIS HASTY AND JAMES SHERMAN

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 JAMESA. BARTA

Washington, D.C. 20004 MOLOLAMKEN LLP

(202) 624-2500 The Watergate, Suite 660

celgarten@crowell.com 600 New Hampshire Ave., NW

Washington, D.C. 20037

Counsel for Dennis Hasty (202) 556-2000

jlamken@mololamken.com

Counsel for James Sherman

(Additional Counsel Listed on Inside Cover)

WiLSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D.C. 20002

SARA E. MARGOLIS

MoOLOLAMKEN LLP

430 Park Ave., Floor 6

New York, N.Y. 10022

(212) 607-8160

DEBRA L. ROTH

JULIA H. PERKINS

SHAW BRANSFORD & ROTH

1100 Connecticut Ave., NW

Suite 900

Washington, D.C. 20036

(202) 463-8400

Counsel for James Sherman

QUESTIONS PRESENTED

This putative class action was filed by foreign nation-

als who were illegally in the United States and detained

following the September 11th terrorist attacks. The FBI

designated respondents as “of interest” or “high inter-

est” to its investigation into the attacks; Bureau of Pris-

ons policy mandated that detainees so designated be

housed in the most restrictive conditions permissible.

Respondents brought this action seeking to hold petition-

ers Dennis Hasty and James Sherman, who were the

Warden and Associate Warden at the Metropolitan De-

tention Center, personally liable in damages, along with

others. Respondents claim that Hasty and Sherman

should be liable because (inter alia) they concluded—and

thus “knew”—that the FBI lacked evidence to support its

terrorism designations for respondents. The questions

presented are:

1. Whether, as the Second Circuit held, the judicially

implied cause of action for damages against individual

officials recognized in Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971), extends to this context.

2. Whether qualified immunity was properly denied,

notwithstanding the specific circumstances confronted by

petitioners—including the FBI’s terrorism designations

for respondents—because the Constitution “clearly” pro-

hibits any “condition of pretrial detention not reasonably

related to a legitimate governmental objective,” Pet. App.

8a, or imposed “because of * * * race, ethnicity, religion,

and/or national origin,” id. at 74a.

3. Whether the allegations against Hasty and Sher-

man—such as the assertion that they “knew” the FBI’s

terrorism designations for respondents were wrong but

imposed otherwise mandatory confinement conditions

because they had discriminatory intent—are sufficiently

plausible to state a claim under Ashcroft vy. Iqbal, 556

U.S. 662 (2009).

(i)

PARTIES TO THE PROCEEDINGS BELOW

Ibrahim Turkmen, Akhil Sachdeva, Ahmer Iqbal

Abbasi, Anser Mehmood, Benamar Benatta, Ahmed

Khalifa, Saeed Hammouda, and Purna Raj Bajracharya

were plaintiffs and/or plaintiffs-intervenors in the district

court and appellees-cross-appellants in the court of

appeals.

Dennis Hasty, Michael Zenk, and James Sherman

were defendants in the district court and appellants in

the court of appeals.

John Ashcroft, Robert Mueller, and James W. Ziglar

were defendants in the district court and cross-appellees

in the court of appeals.

Asif-Ur-Rehman Saffi, Syed Amjad Ali Jaffri, Shakir

Baloch, Hany Ibrahim, Yasser Ebrahim, and Ashraf

Ibrahim were plaintiffs in the district court but did not

participate in the appeals that are the subject of the

proceedings before this Court.

Salvatore Lopresti, Joseph Cuciti, Christopher

Witschel, Clemett Shacks, Brian Rodriguez, Jon Osteen,

Raymond Cotton, William Beck, Steven Barrere, Lind-

sey Bledsoe, Howard Gussak, Marcial Mundo, Daniel

Ortiz, Stuart Pray, Elizabeth Torres, Phillip Barnes,

Sydney Chase, Michael Defrancisco, Richard Diaz, Kevin

Lopez, Mario Machado, Michael McCabe, Raymond

Mickens, Scott Rosebery, and James Cuffee were

defendants in the district court, but did not participate in

the appeals that are the subject of the proceedings before

this Court.

* Mr. Lopresti filed a notice of appeal but did not pay a filing fee or

file a brief. His appeal was accordingly dismissed under Federal

Rule of Appellate Procedure 31(c).

iii

Omer Gavriel Marmari, Yaron Shmuel, Paul Kurz-

berg, Silvan Kurzberg, Javaid Iqbal, Ehab Elmaghraby,

and Irum E. Shiekh were intervenors in the district

court, but did not participate in the appeals that are the

subject of the proceedings before this Court.

TABLE OF CONTENTS

I itiinccstetesnmnsinidntcnmvsteseccsenernnnteenneiensesinnenss

Statement Of FUTIGICtONR ......0.000000:s000esssserccssesescosseeees

Constitutional and Statutory Provisions

a Nae Me SA Die a oe, OE AE a a

es SEE Sa IS as oe a OE OO

I. Proceedings in District Court...........0.00..00.0.

A. Respondents’ Claims for Damages.........

B. The District Court’s Ruling .....................

II. Proceedings in the Second Circuit................

A. The Panel Decision..................c00-s:ssseseseees

B. Judge Raggi’s Dissent..................scc0see00e

C. The Six-Judge Dissent from Denial

of Rehearing En Banc .....................:c00000+

I Ge FI Gicrsenesiiesciesscnstseensnsescensesesensiceee

eect ttcepccecintnsctsisntinntesotnsnniincumntaininnineremnnicenn

I. The Court of Appeals Improperly

Extended the Judicially Implied Bivens

Action to a New Context ...........cccccsseeseecesseers

A. This Court Is Properly Reluctant

To Extend Bivens in View of

RRR

B. The Second Circuit’s “New

Context” Analysis Eviscerates

Special-Factors Review...

C. This Case Is Replete with Special

RR MR TERRE ARETE OLS eR

ll. Hasty and Sherman Are Entitled to

gE a RSL Te

TABLE OF CONTENTS—Continued

Page

A. The Complaint Does Not Plead

Violations of Clearly Established

Due-Process and Equal-Protection

B. The Complaint Does Not Plead

Clearly Established Fourth

Amendment Violations ............:::0+-eeeeeee 42

C. Respondents’ Allegations Do Not

Plead a Clear Violation of § 1985(3) ........ 43

III. The Allegations Do Not Meet /qbal’s

Plausibility Requirement ..............:0-::00 46

A. The Complaint Does Not Plead

Plausible Due-Process or Equal-

Protection Claims Based on

“Official” Conditions ............-.-....:cseoee 46

B. Respondents Do Not Allege

Plausible Fourth Amendment

©. The Complaint Does Not Plausibly

Allege Hasty’s Liability for the

“Unofficial” Conditions ..............ccc.eeeeeeees 54

COMCHUSION ......<<<csceececessccccccsccesessssesonccoccsevscsonessensnsoeseeess 5

TABLE OF AUTHORITIES

Page(s)

CASES

Anderson v. Creighton, 483 U.S. 635

Tse cceccinsnssiceiiantstcslensinnentabantneseenseransccsecescenressnse 37

Arar v. Ashcroft, 585 F.3d 559

le See passim

Ashcroft v. al-Kidd,

tf: | 34, 38, 41

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........ passim

Bell Atl. Corp. v. Twombly,

Be es Be CD Pcsecsiccescscescesinntconicnsscnessnansacent 46

Bell v. Wolfish,

Pe © og | 38, 40, 41,

Bivens v. Six Unknown Named Agents,

Fr Ee, EE passim

Brady v. Dill, 187 F.3d 104

jf eee renner 36

Brass v. Am. Film Techs., Inc.,

987 F.2d 142 (2d Cir. 1993) ...........000....c0.c0sereees 50

Bush v. Lucas,

r gb8-% (46). | 10, 22, 23, 25

Cale v. Johnson, 861 F.2d 943

I I ceeidecicuntetsacstsnssccmascocsnnisenesitenoesninn 27

Carlson v. Green,

Pk SS ee 22, 27, 28

Chappell v. Wallace,

ABB UBS, FBG (RGB) .noceenescccoscessccccseccceccesees passim

CIA v. Sims, 471 U.S. 159 (1985) .........s..ssecseeeees 30

Corr. Servs. Corp. v. Malesko,

bie er passim

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Davis v. Passman,

fF. Sl) enn 22, 23, 27, 28

Davis v. Scherer, 468 U.S. 183 (1984) .............2.... 45

De La Paz v. Coy, 786 F.3d 367

a cate nnistianiidsddnesiatinivindissnoninnione 24, 32

Doe v. Rumsfeld, 683 F.3d 390

eA I caciiriatlecisedecbeeiiniiniloniesininaunsiane 23, 29

Elder v. Holloway, 510 U.S. 510 (1994) ............... 45

¥DIC v. Meyer, 510 U.S. 471 (1994).............cccceee 22

Griffin v. Breckenridge,

SE TT rial iinet venitnstisesisnasiancamibiaiancees 52

Haig v. Agee, 453 U.S. 280 (1981)................... 23, 29

Harisiades v. Shaughnessy,

ee cca cainicinnssncirinienssienenepctnionwnsenes 32

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .......... 34

Iqbal v. Hasty, 490 F.3d 143

ESE SE a 13, 38, 44

Kingsley v. Hendrickson,

a iis ccincsinnicignsiintcnsnonieniencon 40

Lebron v. Rumsfeld, 670 F.3d 540

Es SIE tantrinicbisncisidiidineiadaimeemencicnecine passim

Malley v. Briggs, 475 U.S. 335 (1986) .............000. 34

McAndrew v. Lockheed Martin Corp.,

206 F.3d 1031 (11th Cir. 2000)... eee. 44

Meshal v. Higgenbotham, 804 F.3d 417

Ne I cciicinveinsssckeihiiiegsanerinavens 24, 29, 31

Michigan v. DeF illippo,

ee rican scitcsccsicieinsctcinctccennsicagionss 40, 42

TABLE OF AUTHORITIES—Continued

Page(s)

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

(Gta Cir. 2011)...........cccscscescseesecsssseessessenssess 24, 32

Mullenix v. Luna, 136 S. Ct. 305 (2015)..... 35, 36, 38

Pearson v. Callahan, 555 U.S. 223 (2009) ........... 33

Reichle v. Howards,

>} tes | > 34, 36

Reno v. Am.-Arab Anti-Discrimination

Comm. 525 U.S. 471 (1999) .....-.cceeeeeeeeenenencees 32

Saucier v. Katz, 533 U.S. 194 (2001) .......--.---cee0e 37

Schweiker v. Chilicky,

ke dd 22, 33

Sosa v. Alvarez-Machain,

Be Ee Ce i ieciinticoccennincnssipecuseetensvesesssonie 22

Thomas v. Ashcroft, 470 F.3d 491

(Dd Cir. BOOG).......ccoceseccrceorscscesocscsessosnseseonsoeseseees 27

Turkmen v. Ashcroft, 589 F.3d 542

CD Coli, TI ecesinecccstccectesenicensnssscedacnncsnsmnveresoesees 3

Turkmen v. Ashcroft, No. 02-cv-2307,

2006 WL 1662663

(E.D.N.Y. June 14, 2006) ............eceeeeseeseerensees 7

Turner v. Safley, 482 U.S. 78 (1987) .........---. 53, 54

United States v. Kisala, 64 M.J. 50

(C.B.A.F. BODE) ...200c0cecnsnsencressccseccesseresressenssenseses 32

United States v. Salim, 690 F.3d 115

yt | coon 42

United States v. Stanley, 483 U.S. 669

,: CES SS SE EE TS a 22, 31

Vance v. Rumsfeld, 701 F.3d 193

‘i Le __) | aa nner 30, 33

TABLE OF AUTHORITIES—Continued

Page(s)

Walker v. Schultz, 717 F.3d 119

SEIN AS eS ane nee 54

Wilkie v. Robbins,

| Seen 22, 23, 24, 29

Wilson v. Layne, 526 U.S. 603 (1999) 20.00.00... 43

Wilson v. Libby, 535 F.3d 697

Ene EP 30, 31

Wood v. Moss, 1348S. Ct. 2056, 2068 (2014)......... 38

STATUTES AND RULES

es on ccc tinigniotanisnianodiaseninio odoiedideia 2

ee i cicicentenvases-icpienstnctpiensineaens passim

. 8 OS 0000 een A6

OTHER AUTHORITIES

Manual for Courts-Martial, United

States art. 90(c)(2)(a)(i) (2012) 0... cece 40

2 Moore’s Federal Practice (3d ed. 2015)............ 50

IN THE

Supreme Court of the Anited States

No. 15-1363

DENNIS HASTY AND JAMES SHERMAN,

Petitioners,

Vv.

AIIMER IQBAL ABBASI, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF FOR PETITIONERS

HASTY AND SHERMAN

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. la-163a)

is published at 789 F.3d 218 (2d Cir. 2015).' The opinion

of the district court (Pet. App. 164a-236a) is published at

915 F. Supp. 2d 314 (.D.N.Y. 2013).

STATEMENT OF JURISDICTION

The court of appeals entered judgment on June 17,

2015. Pet. App. la. It denied rehearing and rehearing en

' Except where otherwise indicated, citations are to the petition ap-

pendix in No. 15-1359, Asherojl v. Abbasi.

banc on December 11, 2015. /d. at 237a. Hasty and

Sherman filed a petition for a writ of certiorari on May 6,

2016, and this Court granted the petition on October 11,

2016. This Court has jurisdiction under 28 U.S.C.

§1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Relevant provisions of the U.S. Constitution and Title

42 of the U.S. Code are set forth at pages 241la-248a in

the appendix to the petition in No. 15-1363, Hasty v. Ab-

basi.

STATEMENT

This putative class action was filed by foreign nation-

als who were illegally present in the United States and

detained following the 9/11 terrorist attacks. Respon-

dents seek to impose personal damages liability on vari-

ous federal officials—from the Attorney General to local

prison wardens—under Bivens v. Six Unknown Named

Agents, 403 U.S. 388 (1971), and for conspiracy under 42

U.S.C. §1985(3).

1. PROCEEDINGS IN DisTRICT COURT

“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 per-

petrators and preventing any further attacks.” Pet. App.

7a. More than 4,000 FBI agents were dedicated to the in-

vestigation. Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009).

Hundreds of foreign nationals illegally in the United

States, including respondents, were detained on immi-

gration charges. /bid. Respondents were housed in the

Metropolitan Detention Center (“MDC”) in Brooklyn,

New York. Petitioners Hasty and Sherman were, re-

spectively, the Warden and Associate Warden for Cus-

tody at MDC.

A. Respondents’ Claims for Damages

Filed in 2002, this action names as defendants former

Attorney General John Ashcroft, former FBI Director

Robert Mueller, former INS Commissioner James Ziglar

(the “DOJ Defendants”), former MDC Warden Dennis

Hasty, and former MDC Associate Warden for Custody

James Sherman.

1. Following respondents’ arrests, the FBI desig-

nated them as “of interest” or of “high interest” to the

9/11 investigation. Pet. App. 252a(%1),253a(94). Under

Bureau of Prisons (“BOP”) policy, detainees so classified

had to be held under “‘the most restrictive and secure

conditions permitted.’” /d. at 50a-5la; see /qbal, 556

U.S. at 667. Such detainees were also subject to a “hold-

until-cleared” policy that precluded their release until the

FBI cleared them of terrorism connections. Pet. App.

17a; see id. at 270a(9155); J.A. 218-219, 240-242.

Consistent with those policies, respondents were con-

fined in the “ADMAX SHU,” a special wing of the MDC.

See Pet. App. 10a; see also id. at 258a-254a(%4). A total

of 84 detainees were housed in that unit between Septem.

ber 14, 2001, and August 27, 2002. J.A. 49, 219. Respon-

dents were detained for periods ranging from three to

eight months. Pet. App. 2a.

2. The current allegations stem from the Fourth

Amended Complaint (“Complaint”), filed after the Sec-

ond Circuit remanded the case for reconsideration in

light of Ashcroft v. Iqbal, supra. See Turkmen v. Ash-

croft, 589 F.3d 542 (2d Cir. 2009). The Complaint does

not challenge the legality of respondents’ detention; their

detention on immigration charges was concededly lawful.

See Pet. App. 252a(%91-2), 263a(%33.b). Respondents

challenge only the conditions of their confinement. The

courts below separated those into two categories—“of-

ficial” conditions required by policy, and “unofficial” con-

ditions reflecting unauthorized treatment by individual

prison guards. /d. at 49a, 199a.

The “official” conditions were severe: BOP policy re-

quired detainees designated as “of interest” (or higher)

to the terrorism investigation to be housed in the “most

restrictive *** conditions permitted.” Pet. App. 50a-

Ola. That involved “‘place|ment] in tiny cells for over 23

hours a day’”; the lights were “left on in their cells for 24

hours a day”; and they were “‘prohibited from moving

around the unit, using the telephone freely, using the

commissary, or accessing MDC handbooks.’” /d. at 10a.

Respondents did not claim those conditions would be

impermissible for genuine terrorism suspects. Oral Arg.

at 1:36:58, Turkmen v. Hasty, No. 13-981 (2d Cir. May 1,

2014); Pet. App. 46a (conceding the “challenged condi-

tions” could be imposed on those “with suspected ties to

terrorism”). Respondents agree that whether those con-

ditions could lawfully be imposed on suspects with actual

terrorism connections “is not relevant.” Br. in Opp. 29

n.11.

Instead, respondents’ suit alleges that it was unlawful

to impose those conditions on them because the FBI ter-

rorism designations were wrong. Respondents allege

that, although the FBI had designated them “of interest”

to its investigation, they in fact had no terrorism connec-

tions. Pet. App. 5la-52a; see id. at 277a(%69), 278a-

279a(173). Respondents assert that Hasty and Sherman

violated clearly established law because they supposedly

“knew” the FBI's designations were unfounded, but fail-

ed to disregard the designations by imposing less-restric-

tive conditions (in violation of BOP policy) based on their

own putative views. See id. at 5la-54a.

With respect to “unofficial” conditions, respondents al-

lege “physical and verbal abuse” by individual guards.

See Pet. App. lla Respondents allege that some guards

slammed them into walls, twisted their arms, wrists, and

fingers, and otherwise roughly handled them. /bid. Re-

spondents also allege that MDC guards referred to them

as terrorists, threatened them with violence, made hu-

miliating sexual comments during strip searches, and

insulted their religion. /bid. Respondents allege that

guards called them “camel|s|” and “fucking Muslims.”

Ibid. Respondents do not claim that Hasty or Sherman

observed or engaged in such conduct themselves. See id.

at 54a-57a.

The Complaint incorporated by reference two reports

from the Office of the Inspector General concerning the

treatment of aliens detained in connection with the 9/11

investigation. J.A. 48; see Pet. App. 253a(%3 n.1),

254a(15 n.2). The reports are reproduced at J.A. 34-416."

Released in 2003, those reports reflected investigative

fieldwork from as early as March 2902. J.A. 49. They

noted that the FBI was responsible for designating de-

tainees as “of interest” to its 9/11 investigation, id. at 102,

and that the restrictive conditions were imposed on such

detainees pursuant to BOP policy, id. at 220. Regarding

the unofficial conditions, the Inspector General's “investi-

* Respondents incorporated the OIG reports “except where contra-

dicted by the allegations” of the Complaint. £.y., Pet. App. 258a(%3

n.1). Respondents have identified only one instance of “a possible

conflict between the * * * Complaint and either OIG Report,” see

C.A. Reply Br. of Pls.-Appellees-Cross-Appellants, at 24 n.6—on an

issue not pertinent here.

gation [did] not uncover| | any evidence that the physical

or verbal abuse was engaged in or condoned by anyone

other than the correctional officers who committed it.”

Td. at 299 n.130.

3. The Complaint seeks damages under four the-

ories. Counts 1, 2, and 6 assert Bivens claims. Count 1

alleges a due-process violation. The conditions of con-

finement, it asserts, had no legitimate objective and were

therefore impermissibly punitive. Count 2 asserts an

equal-protection violation, alleging respondents were

held in restrictive conditions based on race, ethnicity, or

national origin. Count 6 asserts that respondents were

subject to unreasonable and punitive strip searches in

violation of the Fourth and Fifth Amendments. Finally,

Count 7 alleges that Hasty, Sherman, and the DOJ De-

fendants violated 42 U.S.C. § 1985(3) by conspiring to vio-

late respondents’ equal-protection rights.*

B. The District Court’s Ruling

The district court granted the DOJ Defendants’ mo-

tions to dismiss, and denied Hasty’s and Sherman’s mo-

tions in relevant part. See Pet. App. 183a-236a.

1. The district court recognized that, since implying

a damages action for constitutional violations in Bivens,

403 U.S. 388, this Court has extended that action to new

contexts only twice, refusing every requested extension

for the past three decades. Pet. App. 221la-222a. Bivens,

the district court observed, will not be extended if “spe-

cial factors” counsel hesitation. /d. at 222a. Special fac-

tors include “‘military concerns,” “‘national security

* Counts 3-5 were dismissed below, Pet. App. 19a-20a, 27a-29a, 203a-

220a, and respondents have not sought further review.

concerns,” and “‘foreign policy considerations.’” /d. at

226a.

The district court recognized that this case involves an

“extraordinary factual context.” Turkmen v. Ashcroft,

No. 02-ev-2307, 2006 WL 1662663, at *30 (E.D.N.Y. June

14, 2006). But it ruled that there was no reason to ex-

amine whether “special factors” counsel hesitation be-

cause respondents were not seeking to “extend” Bivens

to a “new context.” Courts, it asserted, had previously al-

lowed prisoners to assert conditions-of-confinement,

equal-protection, and Fourth Amendment claims under

Bivens. See Pet. App. 192a-193a n.10, 208a n.15, 232a.

2. The district court also ruled that the Complaint

satisfies the pleading standard of /qbal, 556 U.S. 662. Iq-

bal requires the Complaint to “plausibly” plead “an

entitlement to relief” and address “obvious alternative”

explanations for the challenged conduct. Jd. at 679, 682.

For the due-process claims based on “official” condi-

tions (Counts 1 and 6), the court held that “punitive

intent” could be inferred from the conditions themselves.

Pet. App. 200a-201la. Regarding unofficial conditions,

the court saw no indication that Hasty or Sherman had

mistreated prisoners or observed such abuse. But it

found respondents’ allegations of deliberate indifference

sufficient. Jd. at 201a-202a.

The district court also sustained the equal-protection

claim (Count 2). It credited the allegation that Hasty and

Sherman concluded that “the FBI had not developed any

information” tying respondents to terrorism. Pet. App.

‘ The court addressed the due-process challenge to strip searches in

Count 6 together with the official-conditions challenge in Count 1.

Pet. App. 231a n.30.

210a. From that, the court held, one could infer Hasty

and Sherman imposed restrictive conditions based on

race or religion.

The district court also upheld respondents’ Fourth

Amendment challenge to strip searches (Count 6), find-

ing that the Complaint sufficiently alleged that those

searches lacked “legitimate penological purpose.” Pet.

App. 232a-233a. Finally, the court held that respondents

adequately pleaded a conspiracy under § 1985(3) because

Hasty and Sherman had agreed to “implement | the fa-

cially discriminatory harsh confinement policy” required

by BOP. /d. at 234a-235a.

3. The district court denied qualified immunity. On

the due-process conditions-of-confinement claims, the

court found it clearly established in 2001 that pretrial

detainees could not be subject to “punitive conditions of

confinement.” Pet. App. 202a-203a. It reached a similar

conclusion on the equal-protection claim: “{E)xpressly

singling out Arabs and Muslims for harsh conditions of

confinement” violated clearly established law. /d. at

210a-2lla. As for the Fourth Amendment strip-search

claim, the court ruled that “clearly established” law

proscribed searches that are “not reasonably related to a

legitimate penological purpose.” Jd. at 238a. On the

§ 1985(3) claim, the court acknowledged that “it may not

have been clearly established in 2001” that § 1985(3)

reached conspiracies by federal officers. /d. at 235a. But

it denied immunity because no official could believe it

“legally permissible’” to join a conspiracy to discrim-

inate. /bid.

4. The district court dismissed the claims against the

DOJ Defendants, holding that the Complaint did not

meet /qbal’s requirements. Pet. App. 166a.

II. PROCEEDINGS IN THE SECOND CIRCUIT

A. The Panel Decision

A divided panel affirmed in relevant part with respect

to Hasty and Sherman, and reversed dismissal of the

DOJ Defendants.

1. The panel majority did not dispute that, for more

than three decades, this Court has refused to extend Biv-

ens to any new contexts. The majority likewise agreed

that “context” encompasses more than the identity of the

constitutional right allegedly violated. But the majority

ruled that the context here was not “new,” and thus

required no inquiry into whether special factors counsel

hesitation. See Pet. App. 24a-25a.

When deciding whether a context is “new,” the majori-

ty declared, courts should consider only (a) the “rights

injured” and (b) the “mechanism of injury.” Pet. App.

23a. The “rights injured” here, it stated, were “substan-

tive due process and equal protection,” and the “mechan-

ism of injury” was “punitive conditions without sufficient

cause.” /d. at 24a-25a. Thus, the context of respondents’

Bivens claims was “federal detainee Plaintiffs, housed in

a federal facility, alleg{ing| that individual federal officers

subjected them to punitive conditions.” /d. at 24a.

The majority thus declined to consider whether na-

tional security, foreign relations, or other issues concern-

ing the detention of foreign nationals following a terrorist

attack presented “special factors” counselling hesitation.

It did not consider whether special factors counsel hesita-

tion before extending Bivens to claims that local jailers

should have ignored /’B/ terrorism designations based

on their own putative conclusions about the detainees’

connections to an FBI terrorism investigation. And it did

not ask “who should decide whether [to provide] such a

remedy” in this context, Congress or the courts. Bush v.

Lucas, 462 U.S. 367, 380 (1983). Instead, the panel ma-

jority held that, because ordinary prisoners had been

permitted to bring conditions-of-confinement claims in

ordinary contexts, respondents could bring conditions-of-

confinement claims here. Pet. App. 24a n.15.

2. The majority then held that the Complaint plau-

sibly pleaded violations of clearly established rights con-

sistent with /gbal ané qualified-immunity principles.

Due-process claims. With respect to the official con-

ditions of confinement, the majority acknowledged that

the conditions would be lawful for “individuals with sus-

pected ties to terrorism.” Pet. App. 46a. It did not

dispute that BOP policy obligated Hasty and Sherman to

impose those conditions on detainees designated by the

FBI as “of interest” to the 9/11 investigation, including

respondents. /d. at 50a-5la. And the majority admitted

that Hasty and Sherman’s “responsibility to carry out”

BOP’s directive “would not sustain liability.” /d. at 51a.

The majority nonetheless held that the Complaint met

iqbal’s plausibility requirement. It found the Complaint

plausibly alleged that, although Hasty and Sherman may

have “initially believed that they would be housing only

those detainees who were suspected of ties to terrorism,”

they “eventually knew that the FBI lacked any indivi-

dualized suspicion for many” detainees but imposed re-

strictive conditions nonetheless. Pet. App. 52a. Hasty

and Sherman allegedly received “regular written up-

dates” describing why each detainee was arrested and

“the danger he might pose’” to the prison. Ibid. Be-

cause those updates did not link respondents to terror-

ism, the majority stated, the Complaint plausibly alleged

that Hasty and Sherman “knew” the FBI’s “of interest”

designations were unfounded. /d. at 5la-54a. As a re-

sult, the official conditions “were ‘not reasonably related

to a legitimate goal,’” and it was plausible to infer they

were imposed “with punitive intent.” /d. at 50a.

The majority denied qualified immunity. At the time

Hasty and Sherman acted, the majority stated, it was

“clearly established that * * * a condition of pretrial de-

tention not reasonably related to a legitimate govern-

mental objective is punishment” that violates detainees’

“constitutional rights.” Pet. App. 58a. The majority did

not address whether clearly established law required

Hasty and Sherman to disregard FBI terrorism desig-

nations if they believed them erroneous.

With respect to the unauthorized abuse by MDC

guards, the majority held that the claims met /qbal’s

plausibility requirement for Hasty but not Sherman. Pet.

App. 56a-57a. The court invoked allegations that “Hasty

avoided evidence of detainee abuse by ‘neglecting to

make rounds on the ADMAX [SHU].’” /d. at 56a. And it

listed general allegations that Hasty became aware of

abuse and “encouraged” harsh treatment by “referring

to” detainees “as terrorists.” /d. at 57a.

Equal-protection claims. On the equal-protection

claims, the panel abandoned the district court’s reason-

ing. Pet. App. 68a. Instead, it seized on allegations that

Hasty and Sherman had approved a document—of un-

specified date, purpose, and origin—allegedly stating

that “‘executive staff at the MDC had classified’” sus-

pected terrorists “as ‘High Security’ based on * * * ‘indi-

vidualized assessment|s].’” /bid. (quoting Pet. App.

279a(174)). That assertion was false, the panel stated,

because Hasty and Sherman conducted no assessments.

Id. at 68a-69a. Based on those “allegations of duplicity

regarding the basis for confining the 9/11 detainees,” the

majority found it “reasonable to infer * * * discrimina-

tory intent.” /d. at 69a.

The majority did not address the alternative explana-

tion—that Hasty and Sherman were following a BOP

policy that required the conditions of confinement for

individuals the FBI designated “of interest” to its ter-

rorism investigation. Nor did the majority address the

possibility that the cited memorandum meant that the

FBI had made the classifications.

The majority denied qualified immunity, holding that

it “was clearly established * * * that it was illegal to * * *

target [respondents] for mistreatment because of their

race, ethnicity, religion, and/or national origin.” Pet.

App. 74a. The majority did not ask whether clearly es-

tablished law required prison officials to disregard FBI

terrorism designations.

Fourth Amendment claims. The majority upheld the

Fourth Amendment strip-search allegations. Pet. App.

75a-80a. It concluded that respondents had sufficiently

alleged that “Hasty and Sherman were personally in-

volved in creating and executing” a strip-search policy.

Id. at 77a. That policy, the panel held, “was not reason-

ably related to legitimate penological interests,” because

it required searches “when there was no possibility that

[respondents] could have obtained contraband.” /bid.

Section 1985(3). Finally, the court addressed the alle-

gation that Hasty and Sherman violated § 1985(3) by con-

spiring with DOJ officials to violate respondents’ equal-

protection rights. The majority acknowledged that, un-

der the intra-enterprise conspiracy doctrine, members of

a single entity like the DOJ cannot conspire for purposes

of §1985(3). Pet. App. 82a. And it agreed that BOP is

part of the DOJ. See id. at 83a n.46. But it refused to de-

cide whether BOP and DOJ comprise one entity, re-

manding that issue to the district court. Td. at 83a.

The majority again denied qualified immunity. It did

not dispute that there was uncertainty over whether

§ 1985(3) covered the alleged conspiracy given the intra-

enterprise conspiracy doctrine. Pet. App. 88a & n.46.

Nor did it deny that, at the time of these events, it was

not clear that §1985(3) extended to federal officers. /d.

at 83a; see Iqbal v. Hasty, 490 F.3d 143, 177 (2d Cir.

2007), rev’d sub nom. Ashcroft v. Iqbal, 550 U.S. 662

(2009). But the majority held that federal officials could

not reasonably believe it permissible to conspire to

violate equal-protection rights. Pet. App. 83a-84a.

3. On respondents’ cross-appeal, the majority re-

versed dismissal of the DOJ Defendants. Pet. App. 30a-

49a, 61a-68a, 74a-75a.

B. Judge Raggi’s Dissent

Judge Raggi issued a lengthy dissent. Pet. App. 86a-

163a.

1. Judge Raggi observed that, for decades, this

Court has refused to extend Bivens to any new context.

Pet. App. 90a-92a. This Court's “reluctance to extend

Bivens is grounded in our constitutional structure of

separated powers.” /d. at Ila. Proper analysis “focuses

not on ‘the merits of the particular remedy sought,’ but

on ‘who should decide whether such a remedy should be

provided’”—Congress, or the judiciary. /bid. (emphasis

added). Here, Congress must decide whether to extend

Bivens to this new context. Jd. at 92a-118a.

Judge Raggi observed that, by finding this was not a

“new context,” the majority had avoided examining

whether special factors counseled against Bivens’ expan-

sion. Pet. App. 93a-94a. And she objected to the major-

ity’s “new standard” for determining whether a context is

“new.” Jd. at 92a. “|Cjontext,” Judge Raggi urged, could

not be reduced to “general identification of a constitu-

tional right or a mechanism of injury.” /d. at 94a. Rath-

er, special-factors analysis “demands consideration of all

factors counseling for and against an implied damages

action in the specific legal and factual circumstances

presented.” Jbid. “|W]here a proposed Bivens claim

presents legal and factual circumstances that were not

present in an earlier Bivens case, a new assessment is

necessary because no court has yet made the requisite

‘judgment’ that a judicially implied damages remedy is

‘the best way’ to implement constitutional guarantees in

that context.” /bid. “No court,” Judge Raggi concluded,

“has ever made the judgment that an implied damages

remedy is the best way to implement constitutional guar-

antees of substantive due process, equal protection, and

reasonable search when lawfully arrested illegal aliens

challenge an executive confinement policy, purportedly

made at the cabinet level in a time of crisis, and impli-

cating national security and immigration authority.” /d.

at 94a-95a.

Judge Raggi found this case replete with special fac-

tors counselling hesitation. Pet. App. 10la. Respondents

challenge “official executive policy,” and a “Bivens action

has never been considered a ‘proper vehicle for altering

an entity’s policy.’” /d. at 102a; see id. at 102a-105a. Re-

spondents’ claims involved the “executive’s immigration

authority,” a matter “‘largely immune from judicial in-

quiry or interference.’” /d. at 106a-107a. And respon-

dents’ claims carried national-security implications. /d.

at 107a-114a. Such matters, Judge Raggi urged, “‘are

rarely proper subjects for judicial intervention’ in the

absence of congressional authorization.” /d. at 108a.

2. Judge Raggi disagreed with the majority’s holding

that the Complaint satisfied /qbal’s pleading require-

ments. The allegations, she explained, were insufficient

to support a plausible inference that Hasty and Sherman

imposed the restrictive conditions without penological

justification. The “obvious and more likely motivation”

for imposing restrictive conditions on respondents was

“national and prison security” concerns based on the

FBI's “of interest” designations. Pet. App. 146a. Judge

Raggi likewise would have granted immunity with re-

spect to the official conditions of confinement because

they did not violate clearly established law. /d. at 147a-

148a & n.41.

Turning to equal protection, Judge Raggi found re-

spondents’ allegations materially indistinguishable from

the allegations this Court rejected in /gbal. Pet. App.

150a-152a. She again noted that the Complaint failed to

address the “‘obvious’” and “‘more likely’” explanation

for Hasty’s and Sherman’s conduct: Respondents “were

restrictively confined pending FBI-CIA clearance for the

legitimate purpose of ensuring national security.” /d. at

157a. “|Nlo clearly established law would have alerted

every reasonable officer that it violated equal protection

to confine these lawfully arrested illegal aliens pending

clearance.” /d. at 157a-158a. Because the Complaint did

not state a plausible equal-protection violation, it likewise

did not allege an actionable conspiracy to violate equal-

protection rights in violation of §1985(3). /d. at 158a

n.46.

Fiually, Judge Raggi would have rejected respon-

dents’ Fourth Amendment claims. The Complaint failed

to allege facts showing the challenged strip-search policy

lacked a rational relationship to a legitimate government

interest—“‘specifically, prison security.” Pet. App. 159a-

160a. Given documented prison violence by terrorism

suspects, “if was hardly irrational for prison authorities

to conclude that persons under investigation for terrorist

connections should be strip searched both randomly in

their cells and whenever they were moved from one loca-

tion to another.” /d. at 161a.

C. The Six-Judge Dissent from Denial of Rehear-

ing En Bane

The Second Circuit denied rehearing en banc, with six

judges dissenting. The dissenters observed that this case

made the Second Circuit the first court of appeals to

imply “a Bivens damages action * * * for actions taken to

safeguard our country in the immediate aftermath of the

9/11 attacks.” Pet. App. 240a. The dissenters deemed it

obvious that the context was “new” and involved sensitive

matters—like immigration and national security—that

rendered Bivens’ expansion inappropriate. /d. at 243a-

246a. And the panel majority had “avoid[ed] its obliga-

tion” to consider whether special factors counselled hesi-

tation before extending Bivens to these “unprecedented

legal and factual circumstances.” /d. at 243a.

The dissenters disagreed with the panel’s qualified-

immunity analysis. Qualified immunity must be granted

unless the rights asserted “were so clearly established

with respect to the ‘particu/ay conduct’ and the ‘specific

context’ at issue that every reasonable official would have

understood that his conduct was unlawful.” Pet. App.

246a (second emphasis added). The panel cited no case

providing such clarity regarding the particular conduct

and specific context here. /d. at 247a.

Finally, the dissenters urged that the panel’s decision

diluted /qbal’s requirement that plaintiffs “plead a plausi-

ble claim grounded in a factual basis.” Pet. App. 248a.

The panel, the dissenters urged, sustained the Complaint

based on “hypothesized possibilities” and “conclusory as-

sumptions or insinuations.” /bid.

SUMMARY OF ARGUMENT

|. The judicially implied private right of action for

damages against federal officers, first recognized in Biv-

ens Vv. Sic Unknown Named Agents, 403 U.S. 388 (1971),

should not be extended to this new, and extraordinary,

context.

A. This Court has cautioned that Bivens should not

be extended to a new context where “special factors

counsel hesitation”—where circumstances suggest that

Congress, rather than the courts, should decide whether

a damages action is appropriate. For more than three

decades, this Court itself has refused to extend Bivens

“to any new context or new category of defendants.”

Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001).

B.-C. The panel majority never considered whether

special factors counselled hesitation before allowing the

Bivens claims to proceed here. In the panel’s view, it was

not required to analyze special factors because the con-

text of this case was not “new.” It thus did not matter

that this case arises from the Executive’s response to an

unprecedented terrorist attack and the detention of

foreign nationals illegally in the United States. Nor did it

matter that respondents seek damages from local jailers

for failing to disregard F'B/ terrorism designations, and

corresponding BOP confinement policies, based on their

own putative terrorism assessments. Instead, evaluating

the claims at a high level of generality, the panel held

that this context was no different from a garden-varicty

conditions-of-confinement claim by ordinary prisoners in

ordinary times. The panel’s “new context” analysis de-

fies precedent and common sense.

It also ignores all the differences between this context

and ordinary prison-condition cases that give rise to

special factors that should preclude Bivens’ extension.

lor example, the claim that FBI terrorism designations

were incorrect, and jailers should have second-guessed

and ignored them, implicates matters related to national

security, potentially sensitive intelligence information,

and immigration policy, all of which are special factors

that should foreclose a Bivens action. It also implicates

grave concerns for the functioning of the Nation’s law

enforcement chain of command, particularly in times of

national emergency. If there is to be a damages remedy

in this context, Congress rather than the courts must

provide it and define its boundaries.

Il. Hasty and Sherman are entitled to qualified im-

munity. To overcome qualified immunity, a plaintiff must

show that the challenged conduct violated “clearly estab-

lished” rights—that no reasonable officer could have

thought the challenged conduct lawful in the circum-

stances he confronted.

A. Respondents’ due-process and equal-protection

claims are predicated on Hasty and Sherman’s failure to

disregard FBI terrorism designations, and a facially

valid BOP policy, by imposing less restrictive conditions

based on their own subjective assessment of respondents’

terrorism connections. But no clearly established law re-

quired such action. The panel reached a contrary con-

clusion only by analyzing the rights at issue at an imper-

missibly high level of generality that ignored the specific

context Hasty and Sherman confronted.

Bb. The panel denied immunity on the Fourth Amend-

ment strip-search claims because, under clearly estab-

lished law, such searches must be rationally related to

legitimate government purposes. The panel ruled that

the searches did not meet that standard because they

allegedly occurred when “‘there was no possibility that

|respondents] could have obtained * * * contraband.’”

Pet. App. 78a. But a reasonably competent officer could

have thought the strip searches—which occurred when

respondents were transported to and from meetings and

in and out of their cells—were related to the legitimate

interest in prison security. Just two years earlier, a ter-

rorism detainee had severely injured a guard—causing

permanent brain damage—by attacking him with a knife

fashioned from a contraband comb.

C. Hasty and Sherman are also entitled to immunity

on respondents’ § 1985(3) claim. Apart from respondents’

failure to establish the violation of clearly established

equal-protection rights, it was not clearly established in

2001 that §1985(3) even applied to federal officers. Nor

was it clearly established that coordinated action by em-

ployees within the Justice Department—of which BOP is

a part—could constitute a prohibited “conspiracy” within

the meaning of § 1985(3).

Ill. Finally, the Complaint does not “‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 668 (2009) (emphasis added).

A. Respondents’ due-process and equal-protection

claims based on “official” conditions fall far short. The

Complaint fails to dispel the “obvious alternative” and

“more likely” lawful explanation for Hasty and Sher-

man’s decision to impose restrictive conditions of confine-

ment: They were complying with the FBI's terrorism

designations and BOP policies. That respect for coordi-

nate agencies with expertise and a binding prison-secur-

ity policy—not discriminatory motive or arbitrary treat-

ment—is the single most plausible explanation.

B. The strip-search claims fail because they do not

plausibly allege Hasty’s and Sherman’s personal involve-

ment in creating and implementing the supposed policy.

(Indeed, the panel had to infer that the unwritten policy

even existed.) The Complaint contains no factual allega-

tions making it plausible that Hasty and Sherman re-

viewed and approved that unwritten policy or that they

were aware that it would result in irrational strip

searches.

C. The panel dismissed the allegations about “un-

official” conditions—i.e., unauthorized misconduct by

individual prison guards—against Sherman, recognizing

that they failed to show his personal knowledge and

involvement; respondents have not sought further re-

view. But there is no allegation that Hasty personally

participated in or even witnessed the alleged abuses

either. The panel’s perfunctory recitation of a handful of

allegations in the Complaint—ignoring all the more ob-

vious explanations—was insufficient to establish the req-

uisite personal involvement.

ARGUMENT

The panel decision in this case improperly extends

Bivens to a new context, subjecting local jailers to per-

sonal liability for failing to countermand FBI terrorism

designations based on their own putative views. It de-

nied qualified immunity by invoking precisely the sort of

analysis this Court has repeatedly condemned. And its

approach to “plausibility” under /gbal cannot be recon-

ciled with the standards that case sets forth.

I. THE Court Or APPEALS IMPROPERLY EXTENDED

THE JUDICIALLY IMPLIED BIVENS ACTION To A NEW

CONTEXT

For more than three decades, this Court has “consis-

tently refused to extend Bivens liability to any new

context or new category of defendants.” Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 68 (2001). The decision

below nonetheless extends Bivens to a new context for

which it is ill-suited—“actions taken to safeguard our

country in the immediate aftermath of the 9/11 attacks.”

Pet. App. 240a. Foreign nationals, it held, may pursue

Bivens claims for damages against local jailers on the

theory that they should have disregarded the FBI’s

terrorism designations and BOP-mandated detention pol-

icies in favor of their own putative assessments of the de-

tainees’ ties to terrorism. The panel majority extended

Bivens only by improperly refusing to consider “special

factors” that would preclude Bivens’ expansion, asserting

that the context here was not “new.” If foreign nationals

are to be afforded a damages action allowing them to

litigate the validity of FBI terrorism designations—and

to impose personal liability on local jailers—Congress,

not the courts, must decide to create it.

A. This Court Is Properly Reluctant To Extend

Bivens in View of “Special Factors”

In Bivens v. Six Unknown Named Agents, 403 U.S.

388 (1971), this Court “recognized for the first time an

implied private action for damages against federal offi-

cers alleged to have violated a citizen’s constitutional

rights.” Malesko, 534 U.S. at 66. The plaintiff in Bivens

alleged that federal agents had conducted a warrantless

search and arrested him in violation of the Fourth

Amendment. 403 U.S. at 389. The Court implied a dam-

ages action against the officers under the Fourth Amend-

ment. /d. at 397. This Court, however, has repeatedly

cautioned that, “|bljefore a Bivens remedy may be fash-

ioned” for a new context, “a court must take into account

any ‘special factors counselling hesitation’” in the ab-

sence of affirmative action by Congress. Chappell v.

Wallace, 462 U.S. 296, 298 (1983).

1. Inthe decade following Bivens’ judicial creation of

an “implied private action for damages” under the

Fourth Amendment, this Court extended that cause of

action twice. It recognized a Bivens action for unconsti-

tutional discrimination by a U.S. Congressman, Davis v.

Passman, 442 U.S. 228 (1979), and one for Eighth

Amendment violations by prison guards in the ordinary

prison context, Carlson v. Green, 446 U.S. 14 (1980).

The Court has not extended Bivens in the three-and-a-

half decades since. The Court declined to extend Bivens

to “claims of First Amendment violations by federal

employers, Bush v. Lucas, 462 U.S. 367 (1983), harm to

military personnel through activity incident to service,

United States v. Stanley, 483 U.S. 669 (1987); Chappell v.

Wallace, 462 U.S. 296 (1983), and wrongful denials of

Social Security disability benefits, Schweiker v. Chilicky,

487 U.S. 412 (1988).” Wilkie v. Robbins, 551 U.S. 537,

550 (2007). And it has “seen no case for extending Bivens

to claims against federal agencies, FDIC v. Meyer, 510

U.S. 471 (1994), or against private prisons, [Malesko, 534

U.S. at 61).” Wilkie, 551 U.S. at 550.

That reluctance to extend Bivens is well-founded.

This Court has “repeatedly said that a decision to create

a private right of action is one better left to legislative

judgment in the great majority of cases.” Sosa v. Alva-

rez-Machain, 542 U.S. 692, 727 (2004). “‘Congress is in a

better position to decide whether or not the public

interest would be served’” by imposing a “‘new substan-

tive legal liability.’” Schweiker, 487 U.S. at 412, 426-427.

“| |mplied causes of action” are “disfavored.” Ashcroft v.

Iqbal, 556 U.S. 662, 675 (2009). This Court thus has ad-

monished that courts must “‘pay| | particular heed’” not

to expand Bivens to new contexts if “‘special factors

counsel | hesitation.’” Wilkie, 551 U.S. at 550.

2. The special-factors inquiry turns not on “the mer-

its of the particular remedy,” but on “who should decide

whether [to provide] such a remedy”—Congress or the

courts. Bush, 462 U.S. at 380 (emphasis added). For

example, courts will not imply a Bivens action touching

on “military, national security, or intelligence” matters.

Doe v. Rumsfeld, 683 F.3d 390, 394 (D.C. Cir. 2012). In

those areas, Congress’s and the Executive’s competence

to balance competing objectives is at its apogee, while the

judiciary’s is at its nadir. /bid.; see Haig v. Agee, 453

U.S. 280, 292 (1981) (“Matters intimately related to * * *

national security are rarely proper subjects for judicial

intervention.”).

In Davis, this Court implied a Bivens remedy for a

former congressional staffer claiming gender discrim-

ination in violation of the Fifth Amendment. 442 U.S. at

230-231, 248-249. Four years later, in Chappell, the

Court refused to extend Bivens to claims by Navy sailors

who likewise alleged employment discrimination. 462

U.S. at 304. The Court did not deem the two contexts

identical in view of the identity of the legal claims.

Instead, it looked to an additional consideration not pre-

sent in Davis—the military context—and concluded that

it counseled a different result. Jd. at 300-301, 304. When

such “special factors” are present, Congress is “‘in a far

better position than a court to evaluate the impact of a

new species of litigation,’” and courts thus will not imply

a new damages remedy. Lebron v. Rumsfeld, 670 F.3d

540, 553 (4th Cir.), cert. denied, 132 S. Ct. 2751 (2012).

While this Court has cautioned against extending Biv-

ens Lo “new contexts,” it has not articulated a test for

determining whethcr a “context” is “new.” The courts of

appeals, however, have generally adopted a common-

sense approach, “construling| ‘context’ * * * ‘to reflect a

potentially recurring scenario that has similar legal and

factual components.’” Meshal v. Higgenbothaim, 804

F.3d 417, 424 (D.C. Cir. 2015) (quoting Arar v. Ashcroft,

585 F.3d 559, 572 (2d Cir. 2009) (en banc), cert. denied,

560 U.S. 978 (2010)); see De La Paz v. Coy, 786 F.3d 367,

372 (5th Cir. 2015); Mirmehdi v. United States, 689 F.3d

975, 981 (9th Cir. 2011), cert. denied, 133 S. Ct. 2336

(2013).

That approach functions reasonably so long as courts,

in comparing “legal and factual” scenarios, consider dif-

ferences between the current case and prior ones that

may give rise to “special factors counselling hesitation.”

As Judge Raggi explained, “where a proposed Bivens

claim presents legal and factual circumstances that were

not present in an earlier Bivens case, a new assessment”

of whether special factors counsel hesitation “is neces-

sary because no court has yet made the requisite ‘judg-

ment’ that a judicially implied damages remedy is ‘the

best way’ to implement constitutional guarantees in that

context.” Pet. App. 94a (quoting Wilkie, 551 U.S. at 550).

B. The Second Circuit’s “New Context” Analysis

Eviscerates Special-Factors Review

This case arises from a national-security response to

the 9/11 terrorist attacks. Respondents are foreign na-

tionals, illegally in the United States, who were detained

as part of the investigation into that attack. Because the

FBI designated them as “of interest” or of “high inter-

est” to its investigation, e.g., Pet. App. 302a(1143), BOP

policy required that respondents be confined in the “most

restrictive and secure conditions permitted,” id. at 50a-

5la. Respondents do not challenge the legality of that

policy itself. Rather, they claim that the imposition of

restrictive confinement conditions on them violated due

process and equal protection. Respondents allege that,

while Hasty and Sherman may have “initially believed

that they would be housing only those detainees who

were suspected of ties to terrorism,” they “eventually

knew that the FBI lacked any individualized suspicion for

many” detainees held in restrictive confinement, id. at

52a (second emphasis added), yet “continued to detain

them” in those conditions, id. at 53a. Essentially, respon-

dents seek to hold local jailers liable under Bivens

because they failed to reject FBI terrorism designations,

and did not disregard the corresponding confinement

conditions mandated by BOP policy, based on their own

putative views about respondents’ ties to terrorism.

1. The panel majority refused to consider whether

“special factors” counselled against extension of the

Bivens action to this context. The majority declined to

consider that this case arises from a national-security

response to an unprecedented terrorist attack. It did not

address whether special factors might exist here because

the case implicates FBI terrorism designations—or that

the claims rest on the theory that local jailers were

obligated to disregard them. It did not consider whether

permitting a case like this to proceed might touch on

issues of national security, require inquiry into intelli-

gence information, or affect foreign relations. Nor did it

ask “who should decide whether |to provide] such a rem-

edy” in this context, Congress or the courts. Bush, 462

U.S. at 380.

Instead, the panel held that the context was not

“new’—that the case “stands firmly within a familiar

Bivens context.” Pet. App. 25a. But it reached that re-

sult only by adopting a highly generalized test for deter-

mining whether a Bivens context is “new.” A context is

not “new,” the majority held, if (a) the “rights injured”

and (b) the “mechanism of injury” match those in prior

Bivens actions. /d. at 23a. Applying that test, the panel

identified the injured rights as “substantive due process,”

“equal protection,” and “Fourth Amendment” rights. /d.

at 24a, 28a-29a. And it identified the “mechanism of in-

jury” as “punitive conditions without sufficient cause”

and “an unreasonable search performed by a prison offi-

cial.” Jd. at 24a-25a, 28a.

The panel majority thus defined the “context” here as

“federal detainee|s| * * * alleg{ing]| that individual federal

officers subjected them to punitive conditions” or “sub-

jected them to unreasonable searches.” Pet. App. 24a,

28a. At that level of abstraction, the panel found no dif-

ference between a run-of-the-mill prisoner suit alleging

“punitive conditions” or “unreasonable searches” and the

extraordinary context here—the claim that jailers should

be liable for deferring to the FBI’s terrorism designa-

tions for detained foreign nationals in the wake of 9/11.

That approach utterly decontextualizes “context.” “At

a sufficiently high level of generality,” any case can be

analogized to another. Arar, 585 F.3d at 572. The

approach also divorces the “context” inquiry from its pur-

pose. The point is to determine whether courts have al-

ready conducted a “special factors” analysis addressing

the same considerations, rendering a new analysis unnec-

essary. See Pet. App. 94a (Raggi, J., dissenting). Courts

may have allowed Bivens suits by “federal detainee|s|”

based on garden-variety allegations that “federal officers

subjected them to punitive conditions.” /d. at 24a-25a,

28a-29a. But that does not mean courts have considered

whether “special factors” counsel against judicial implica-

tion of a Bivens action for claims touching on national

security, or seeking to impose personal liability on jailers

for respecting FBI terrorism designations.

The cases cited by the panel majority illustrate the

problem. For example, the panel cited Cale v. Johnson,

861 F.2d 943 (6th Cir. 1988), as holding that “‘a Bivens

action may be brought by a federal prisoner, alleging vio-

lations of his right to substantive due process.’” Pet.

App. 26a. But Cale concerned allegations that a prison

official had “plant{ed] illegal drugs” on an inmate for “re-

taliatory purposes.” 861 F.2d at 948. Other cited cases

involved familiar allegations of deliberate indifference to

medical needs—from guards “delay|ing] for too long” in

transferring prisoners to a hospital, Carlson, 446 U.S. at

16 n.1, to denying a prisoner “access to his glaucoma

medication,” Thomas v. Ashcroft, 470 F.3d 491, 494 (2d

Cir. 2006).

That special factors did not counsel hesitation in those

contexts says nothing about whether special factors

counsel hesitation here—where detained foreign nation-

als unlawfully present in the United States following ter-

rorist attacks seek to hold local jailers liable for not dis-

regarding the FBI’s terrorism designations and the

BOP’s corresponding mandatory confinement conditions.

If this Court’s admonition that courts must consider

special factors before extending Bivens to new “contexts”

means anything, courts cannot equate the unprecedented

context here with an ordinary conditions-of-confinement

challenge by ordinary inmates in ordinary times.

2. The Second Circuit’s “new context” framework

defies this Court’s precedents. As noted above, Davis

implied a Bivens remedy to permit a former congression-

al staffer to assert gender discrimination. 442 U.S. at

230-231, 248-249. But Chappell foreclosed a similar claim

by Navy sailors. 462 U.S. at 297, 304. Under the Second

Circuit’s “source of right”/“mechanism of injury” for-

mulation, Chappell would not have been a new “context.”

In both Chappell and Passman, the source of the right

(Fifth Amendment) and the mechanism of injury (dis-

criminatory employment actions) were the same. But

this Court recognized that Chappell arose within “the

framework of the military establishment,” an area where

Congress and not the courts has particular authority and

expertise. 462 U.S. at 301-303. It thus presented a new

context where special factors precluded Bivens’ expan-

sion.”

Likewise, although this Court implied an Eighth

Amendment remedy against federal prison officials in

Carlson, 446 U.S. at 17, it refused to extend that remedy

to suits against private corporations operating a prison

under a BOP contract in Malesko, 534 U.S. at 63. The

legal and factual differences between publicly employed

corrections officers and private corporations, the Court

ruled, counseled against Bivens’ expansion. See id. at 70-

74.

The Second Circuit’s “new context” framework thus

defies precedent and common sense. By treating cases

* The Second Circuit characterized Chappell as “focus|ing| on the

special nature of the employer-omployee relationship in the mili-

tary—or, in other words, the mechanism of injury.” Pet. App. 24a

n.l5. But the Second Circuit ignored the similarly special nature of

any “mechanism of injury” here, disregarding national-security con-

cerns and the different roles of the FBI and local jailers in

identifying terrorist threats. See id. at 24a, 28a.

with different legal and factual circumstances as the

same “context,” it evades analysis of considerations criti-

eal to whether “special factors” counsel against judicial

implication of a remedy Congress has not authorized. A

“new context” test that does not acknowledge the differ-

ences between a run-of-the-mill conditions-of-confine-

ment case by an ordinary prisoner and the exceptional

circumstances at issue here is no test at all. Such an ap-

proach “invite|s|” Bivens’ expansion into “every sphere

of legitimate governmental action.” Wilkie, 551 U.S. at

561.

C. This Case Is Replete with Special Factors

This action arises from a national-security response to

the most devastating terrorist attack “‘in the history of

the American Republic.’” /qbal, 556 U.S. at 685. “[T]he

executive’s exercise of national security authority * * *

will be the critical focus” of the case. Pet. App. 108a.

Special factors thus resonate throughout this context.

1. “Matters intimately related to * * * national se-

curity are rarely proper subjects for judicial interven-

tion.” Haig, 453 U.S. at 292. Consequently, where the

allegations involve “the military, national security, or

intelligence,” special factors counsel against extending

Bivens. Doe, 683 F.3d at 394; see also Meshal, 804 F.3d

at 425-426.

For example, in Lebron, the Fourth Circuit refused to

extend Bivens to claims against Department of Defense

officials arising from a citizen’s seizure and detention as

an enemy combatant. Special factors counseled hesita-

tion because a Bivens remedy would “‘intrude upon the

authority of the Executive in military and national secu-

rity affairs.’” 670 F.3d at 549. Likewise, in Doe, the D.C.

Circuit declined to extend Bivens to a case that “would

require a court to delve into the military’s policies re-

garding the designation of detainees as * * * ‘enemy com-

batants,’ as well as policies governing interrogation tech-

niques.” 683 F.3d at 394, 396.

Those same considerations apply here. This case

would require courts to second-guess FBI terrorism des-

ignations for foreign nationals and decide appropriate

conditions of confinement. Whether the judiciary should

be placed in the position of “reviewling] and disap-

prov|ing| sensitive * * * decisions” of that sort is a deci-

sion “‘more appropriate| | for those who write the laws’”

than “‘for those who interpret them.’” Lebron, 670 F.3d

at 551-552. That is so not only because constitutional

authority to create causes of action rests with the politi-

cal branches, “but also because that’s where the expertise

lies.” Vance v. Rumsfeld, 701 F.3d 193, 200 (7th Cir.

2012) (en bance), cert. denied, 133 8. Ct. 2796 (2013).

2. Unlike typical prison cases, moreover, cases like

this one often involve classified or sensitive information.

The propriety of FBI terrorism designations, and the

assertion that Hasty and Sherman “knew” the FBI was

wrong, are linchpins of respondents’ claims. Litigating

the merits thus could “require judicial intrusion into

matters of national security and sensitive intelligence

information.” Wilson v. Libby, 535 F.3d 697, 710 (D.C.

Cir. 2008), cert. denied, 557 U.S. 919 (2009). “Even a

small chance that some court will order disclosure of a

source’s identity could well impair intelligence gathering

and cause sources to ‘close up like a clam.’” C/A v. Sims,

471 U.S. 159, 175 (1985).

That consideration has special force where, as here,

the plaintiffs are foreign nationals. See Arar, 585 F.3d at

576. The FBI’s assessment of terrorism connections in

such cases may rest on “exchanges among the ministries

and agencies of foreign countries on diplomatic, security,

and intelligence issues.” /bid. “Even the probing of

these matters” may deter foreign nations from “sharing

intelligence resources to counter terrorism.” J/bid.; see

Lebron, 670 F.3d at 554. Because the legislature is better

equipped to evaluate those risks, the potential involve-

ment of sensitive information likewise weighs dispositive-

ly against Bivens’ expansion. Lebron, 670 F.3d at 554.

Respondents’ effort to deny that risk proves the oppo-

site. Respondents note that, according to the Complaint,

“there was no reason to suspect [respondents | of any con-

nection to terrorism,” and Hasty and Sherman knew it.

Br. in Opp. 20. On a motion to dismiss, they assert, those

allegations must be taken as true. /d. at 19-20. But re-

spondents will have the burden of proving that the FBI

had no intelligence information tying them to terrorism,

and defendants may wish to prove the opposite. Liti-

gating such issues threatens to “require judicial intrusion

into matters of national security and sensitive intelli-

gence information.” Libby, 535 F.3d at 710. Even uncer-

tainty over the need to consider sensitive information at

any point in the litigation “is reason for caution” before

extending Bivens. Meshal, 804 F.3d at 426; see Lebron,

670 F.3d at 553 (special factors preclude Bivens’ exten-

sion in part because “[a|ny defense” to the claims would

involve terrorism “intelligence”); Stanley, 483 U.S. at 682

(noting “the prospect of compelled depositions and trial

testimony by military officers” in concluding that special

factors preclude Bivens’ expansion to the military con-

text)."

* The availability of the state-secrets privilege does not substitute for

such considerations. It may be that “courts can—with difficulty and

resourcefulness—consider” that doctrine to protect state secrets

“when there is an unflagging duty to exercise jurisdiction.” Arer,

3. As the panel acknowledged, this case also has a

“major immigration law component.” Pet. App. 8a. That,

too, is a special factor. “|Ajny policy toward aliens is

** * so exclusively entrusted to the political branches of

government as to be largely immune from judicial in-

quiry or interference.” Harisiades v. Shaughnessy, 342

U.S. 580, 588-589 (1952). Immigration policy is replete

with “foreign-policy objectives and * * * foreign-intelli-

gence products and techniques.” eno v. Am.-Arab

Anti-Discrimination Comm., 525 U.S. 471, 490-491

(1999). The implication of “immigration issues” further

“‘counsels hesitation’ in extending Bivens” here. Mir-

mehdi, 689 F.3d at 982; see De La Paz, 786 F.3d at 375.

4. This case implicates a special factor of particular

salience to lower-level officials assigned sensitive duties

in the uncertainty that can follow a national emergency—

the ability to rely on the chain of command and the ex-

pertise of coordinate agencies. The proper functioning of

law enforcement, even in ordinary times, depends on

subordinate officers following orders and policies issued

by superiors. Cf. U/nited States v. Kisala, 64 M.J. 50, 51-

52 (C.A.A.F. 2006). Yet the decision below seeks to im-

pose liability on local jailers because they did not dis-

regard terrorism designations made by the F’B/—an

agency with far more information and experience in

terrorism-related matters—in favor of their own putative

assessments of prisoners’ terrorism connections.

The very notion of chain of command cannot survive if

lower-level officers must face the prospect of liability for

585 F.3d at 575-576. But courts should not recognize a cause of

action that will require them to do so unless “the legislative branch

has authorized that course.” Lebron, 670 F.3d at 554; see Arar, 585

F.3d at 576.

failing to countermand facially lawful orders from super-

visors and designations by agencies with intelligence and

expertise that the lower-level officials lack. If such a

damages action is to be recognized, Congress and not the

courts must create it. Cf. Chappell, 462 U.S. at 304 (re-

fusing to recognize a Bivens action that would “disrupt{ }”

the “special relationship” between a “soldier [and] his

superiors” (quotation marks omitted)).

Here, moreover, respondents deploy Bivens to chal-

lenge what they characterize as national-security “policy”

promulgated by senior Executive Branch officials. £.g.,

Pet. App. 255a(16); see id. at 244a. But “the Bivens

remedy *** hals] never [been] considered a proper

vehicle for altering an entity’s policy.” Malesko, 534 U.S.

at 74; see Ashcroft Pet., No. 15-1359, at 17-18. If suing

senior Executive officials for promulgating policy is not a

legitimate basis for a Bivens action, then suing lower-

level officials for following that policy is not either.

5. Finally, the “|clongressional attention” to the con-

stitutional] violations alleged here has been “frequent and

intense.” Schweiker, 487 U.S. at 425. The Office of the

Inspector General issued lengthy and detailed reports.

Pet. App. 115a-117a (Raggi, J., dissenting); see J.A. 34-

416. Yet “[ajt no point did Congress choose to extend

*** the kind of remedies that respondents seek in this

lawsuit.” Schweiker, 487 U.S. at 426. Congress’s deci-

sion not to provide a remedy itself confirms that this

Court should not imply one. /d. at 423; see Lebron, 670

I'.3d at 551-552; Vance, 701 F.3d at 200-201.

il. HASty AND SHERMAN ARE ENTITLED TO QUALIFIED

IMMUNITY

Federal officials are entitled to qualified immunity so

long as “‘their conduct does not violate clearly estab-

lished statutory or constitutional rights.” Pearson v.

Callahan, 555 U.S. 223, 231 (2009). The “clearly estab-

lished” rights inquiry must account for the specific cir-

cumstances the officer confronted. “To be clearly estab-

lished, a right must be sufficiently clear that ‘every

“reasonable official would [have understood] that what he

is doing violates that right.”’” Reichle v. Howards, 132

S. Ct. 2088, 2093 (2012) (emphasis added). “{I|f officers

of reasonable competence could disagree on [the] issue,

immunity should be recognized.” Malley v. Briggs, 475

U.S. 335, 341 (1986).

“|I}mmunity thus may be denied only if “‘existing

precedent * * * placed’” the answer “‘beyond debate.’”

Reichle, 132 S. Ct. at 2093. Although the inquiry is “ob-

jective” —subjective good faith is irrelevant, Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982)—qualified immunity

“gives government officials breathing room to make rea-

sonable but mistaken judgments * * * . Properly applied,

it protects ‘all but the plainly incompetent or those who

knowingly violate the law.’” Ashcroft v. al-Kidd, 563 U.S.

731, 743 (2011). The decision below defies those stan-

dards.

A. The Complaint Does Not Plead Violations of

Clearly Established Due-Process and Equal-

Protection Rights

According to the Complaint, Hasty and Sherman vio-

lated respondents’ due-process and equal-protection

rights by keeping them in restrictive conditions. Pet.

App. 49a-54a, 68a-73a. No one denies that the FBI had

designated respondents as “of interest” to its 9/11 inves-

tigation. /d. at 16a-17a, 51a. Nor does anyone dispute

that BOP policy mandated that all detainees so desig-

nated be housed in the “‘most restrictive * * * conditions

permitted.’” /d. at 50a-5la. The panel recognized that

“national security concerns could justify detaining those

individuals with suspected ties to terrorism in these

challenged conditions” for a whole “litany of reasons.”

Id. at 46a; see id. at 143a-144a. The panel thus agreed

that Hasty and Sherman’s execution of that policy itself

“would not sustain liability.” Jd. at 51a.

1. The panel majority nonetheless held that Hasty

and Sherman could be liable because, according to the

Jomplaint, they became “‘aware that the FBI had not

developed any information’” tying respondents “‘to ter-

rorism.’” Pet. App. 5la. Hasty and Sherman, the panel

presumed, were obligated to overrule the FBI’s terror-

ism designations, and place respondents in less re-

strictive conditions, based on their amateur assessments

of respondents’ connection to the 9/11 investigation. /d.

at 5la-52a.

Setting aside the implausibility of the Complaint’s

allegations—that local jailers had the information and ex-

pertise to “know” the FBI’s terrorism designations were

wrong—the allegations identify no violation of clearly

established law. The panel cited no authority, and

certainly no “clearly established law,” declaring that local

jailers are constitutionally obligated to reject FBI

terrorism designations in favor of their own putative

assessments. Looking at the “‘particular conduct’”

alleged, in the “‘specific context’” in which Hasty and

Sherman acted, Mullenix v. Luna, 136 S. Ct. 305, 308

(2015), the claim that the Constitution required them to

defy BOP policy and FBI designations was hardly

““‘beyond debate.’” /bid.

To the contrary, most “reasonably competent” prison

officials would have believed they were required to re-

spect the FBI’s designations, whatever their own sub-

jective beliefs. “|M Jade at BOP headquarters,” the policy

requiring “highly restrictive conditions” for anyone “of

interest” to the FBI’s 9/11 terrorism investigation was

facially constitutional. Pet. App. 3la, 50a-5la. And the

determination that respondents were “of interest” to the

FBI's investigation came from the FBI, the agency that

has domestic and foreign intelligence information and

was charged with running the investigation. Hasty and

Sherman, by contrast, had no role in the 9/11 investi-

gation. They had no expertise in terrorism matters. And

they had no reason to receive all intelligence information

the FBI might have.

Under those circumstances, the contention that “every

reasonable official would have understood” that these

jailers were constitutionally obligated to overrule the

FBI’s designations and the BOP’s policy based on their

own supposed subjective beliefs defies credulity. See

Reichle, 132 S. Ct. at 2093.’

2. The Second Circuit reached the opposite conclu-

sion only by changing the question. For the due-process

claims relating to official conditions, it denied immunity

because it was clearly established that “a condition of

pretrial detention not reasonably related to a legitimate

governmental objective is punishment in violation of the

constitutional rights of detainees.” Pet. App. 58a. That

framing of the inquiry contravenes this Court’s repeated

admonition “‘not to define clearly established law at a

high level of generality.” Mudllenix, 136 S. Ct. at 308.

The “dispositive inquiry in determining whether a right

is clearly established is whether it would be clear to a

“If anything, cases suggest the opposite. In Brady v. Dill, 187 F.3d

104 (Ist Cir. 1999), for example, the court held that “subjective

belief” in an arrestee’s innocence “is generally insufficient to justify

a police officer’s unilateral release of a person who has been lawfully

arrested pursuant to a valid judicial order.” /d. at 113.

reasonable officer that his conduct was unlawful in the

situation he confronted.” Saucier v. Katz, 533 U.S. 194,

202 (2001) (emphasis added). The panel’s formulation ex-

cludes any consideration of the “situation”—the FBI

terrorism designations and BOP-mandated policy in the

wake of an unprecedented terrorist attack—that Hasty

and Sherman “confronted.”

In Anderson v. Creighton, 483 U.S. 635 (1987), this

Court held that qualified immunity may not be denied in

a Fourth Amendment case simply because the right to be

free from unreasonable searches is clearly established by

the Fourth Amendment. /d. at 639. If the test were ap-

plied “at this level of generality,” plaintiffs “would be able

to convert the rule of qualified immunity * * * into a rule

of virtually unqualified liability simply by alleging

violation of extremely abstract rights.” /bid. Conse-

quently, this Court requires “that the right the official is

alleged to have violated must have been ‘clearly estab-

lished’ in a more particularized, and hence relevant,

sense.” Jd. at 640. The right’s “contours” must have

been so clear that any reasonably competent officer

would have understood that his conduct was unlawful in

the situation he confronted. /bid.

The panel’s contention that rights “do[ ] not vary with

the surrounding circumstances,” Pet. App. 49a, does not

justify the contrary approach. However attractive that

may sound in the abstract, whether conduct violates

rights—and thus the rights’ scope—does depend on cir-

cumstances. The right to be free from unreasonable

searches in some sense may not “vary” with context. But

whether a search is “unreasonable”—and thus violates

the plaintiff’s rights—does depend on circumstances.

Anderson, 483 U.S. at 640-641. This Court thus evalu-

ates immunity by addressing whether the challenged

conduct was obviously unlawful given the specific situa-

tion the officers confronted.”

The court of appeals repeated its error by asserting

that Bell v. Wolfish, 441 U.S. 520 (1979), made it “clear

that a condition of pretrial detention not reasonably re-

lated to a legitimate governmental objective is punish-

ment in violation of the constitutional rights of detain-

ees.” Pet. App. 58a. Wolfish merely states that legal

principle as a “general proposition.” al-Kidd, 563 U.S. at

742. Indeed, Wolfish rejected the constitutional chal-

lenges there (e.g., that “double-bunking” inmates in the

same cell violated due process). 441 U.S. at 541. It is

anyone’s guess how Wolfish “clearly establishes” that

Hasty and Sherman were required to disregard the

FBI's terrorism designations and substitute their own

supposed beliefs.”

* See, e.g., Mullenix, 136 S. Ct. at 309 (addressing whether clearly

established law prohibited shooting “a reportedly intoxicated fugi-

tive, set on avoiding capture through high-speed vehicular flight,

who twice during his flight had threatened to shoot police officers,

and who was moments away from encountering an officer”); Wood v.

Moss, 134 S. Ct. 2056, 2068 (2014) (addressing whether clearly

established law required “Secret Service agents engaged in crowd

control * * * ‘to ensure that groups with different viewpoints are at

comparable locations at all times’”).

* The panel also relied on the Second Circuit’s earlier decision in

Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007), rev’d sub nom. Asheroft

v. Iqbal, 556 U.S. 662 (2009), as having “denied qualified immunity

with respect to a materially identical conditions claim.” Pet. App.

48a. But that earlier ruling suffers from the same defect as the deci-

sion below—it improperly concluded that the specific “context” was

irrelevant. 490 F.3d at 169. The court's ruling, moreover, does not

bind this Court. Whether the conduct here violated clearly establish-

ed law is one of the questions this Court granted review to address.

Pet. i, in No. 15-1368.

The panel majority’s equal-protection analysis suffers

from the same defect. The majority invoked a general

standard: “[{I]t was clearly established * * * that it was

illegal to hold individuals in harsh conditions of confine-

ment or otherwise target them for mistreatment because

of their race, ethnicity, religion, and/or national origin.”

Pet. App. 74a. The panel never addressed whether any

reasonable officer would understand that the actions

Ilasty and Sherman took—affording due respect to the

FBI's terrorism designations when implementing the

BOP’s facially valid mandatory confinement policy—

would violate that standard.

The answer to that question is “no.” In /qbal, this

Court reviewed the FBI’s “‘arrest| | and det|ention] [of |

thousands of Arab Muslim men’” in connection with its

9/11 investigation, as well as its policy of holding such de-

tainees in “‘highly restrictive conditions of confinement’”

until cleared. 556 U.S. at 681. Because the attacks were

“perpetrated by 19 Arab Muslim hijackers,” the Court

found it unsurprising “that a legitimate policy directing

law enforcement to arrest and detain individuals because

of their suspected link to the attacks would produce a

disparate, incidental impact on Arab Muslims.” /d. at

682. Such arrests were more likely motivated not by dis-

criminatory bias, but rather by a “nondiscriminatory in-

tent to detain” aliens “who had potential connections to

those who committed terrorist acts.” /bid. The panel

majority nowhere explained why every reasonable officer

in Hasty and Sherman’s circumstances would conclude

otherwise with respect to the policies they were obligated

to effect.

3. The panel did not suggest that Hasty and Sher-

man imposed the challenged conditions of their own voli-

tion based on “an express[ed] intent to punish.” Pet.

App. 50a."" Nor could it: “|The decision to impose high-

ly restrictive conditions was made” not by Hasty and

Sherman, but “at BOP headquarters.” /bid. Instead, the

fundamental premise of respondents’ suit is that Hasty

and Sherman became required—as a matter of clearly

established law—to disregard the FBI’s designations

based on their own subjective assessments of respon-

dents’ terrorism connections. See id. at 5la-59a. No

precedent supports that putative obligation. In fact, it is

doubtful Hasty and Sherman even had that authority.

Neither Hasty nor Sherman were competent or

authorized to decide whether detainees were “of interest”

to the FBI’s 9/11 investigation. Whether the detainees

were “of interest” to the FBI’s investigation was a matter

for the FBI itself. Because the BOP’s restrictive-condi-

tion requirements were facially valid, Pet. App. 3la, 50a-

5la, Hasty and Sherman had no authority to disobey

them either. It is well established that “an order requir-

ing the performance of a military duty or act may be in-

ferred to be lawful and it is disobeyed at the peril of the

subordinate.” Manual for Courts-Martial, United States

art. 90(c)(2)(a)(i) (2012). Likewise, this Court has ex-

plained that “{plolice are charged to enforce laws until

and unless they are declared unconstitutional.” Michi-

gan v. DeFillippo, 448 U.S. 31, 37-38 (1979). “Society

In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), this Court

explained that Wolfish divides cases into two categories—those with

“an expressed intent to punish” and those without. Wolfish “ex-

plain{ed] that, in the absence of an expressed intent to punish,” pre-

trial detention conditions violate the Constitution if they are “not ‘ra-

tionally related to a legitimate non-punitive governmental purpose.’”

ld. at 2473-2474. The latter test is “solely an objective one.” /d. at

2473; see ibid. (Wolfish applied “rationally related” standard without

considering “the prison officials’ subjective beliefs about the policy”).

would be ill-served if its police officers took it upon them-

selves to determine which laws are and which are not

constitutionally entitled to enforcement.” /bid.

So too here. Hasty and Sherman were “charged” with

implementing BOP policy based on the FBI’s terrorism

determinations. It is an understatement to say “|s|ociety

would be ill-served” if corrections officers took it upon

themselves to second-guess our intelligence agencies in

assessing Lerrorism-related risks. Indeed, as explained

below, experience has taught that underestimating such

risks can be calamitous. See p. 42 & n.12, infra.

Consequently, even using Wolfish’s general formula-

tion, Hasty and Sherman’s conduct was not clearly un-

lawful. Following a facially valid BOP confinement policy

in view of terrorism designations provided by the FBI

has a “legitimate nonpunitive governmental purpose.”

Wolfish, 441 U.S. at 561. It ensures terrorism assess-

ments are made by those with expertise, information, and

authority, and that jailers without experience in such

matters do not jeopardize security based on their own

untutored views. No clearly established law compels the

contrary conclusion."

" Even if Hasty and Sherman's supposed belief that the FBI's

terrorism designations were wrong were taken to suggest they had

improper motives, but see pp. 39-40 & n.10, supra, that would not

render compliance with facially valid orders clearly unconstitutional.

See al-Kidd, 563 U.S. at 744 (“We hold that an objectively rea-

sonable arrest and detention of a material wilness pursuant to a

validly obtained warrant cannot be challenged as unconstitutional on

the basis of allegations that the arresting authority had an improper

motive.”).

B. The Complaint Does Not Plead Clearly Estab-

lished Fourth Amendment Violations

The Fourth Amendment strip-search claims fare no

better. Denying qualified immunity, the panel declared

“‘it was clearly established’” that “‘strip and body-cavity

searches |must] be rationally related to legitimate gov-

ernment purposes.’” Pet. App. 79a. The challenged pol-

icy was clearly unlawful, the panel held, because it re-

quired strip searches “when there was no possibility that

[respondents] could have obtained contraband.” /d. at

77a. That analysis, however, again fails to examine wheth-

er the policy was clearly unlawful in the circumstances

Hasty and Sherman confronted.

Experience in similar circumstances had taught that

failure to exercise extreme diligence can have deva-

stating consequences. A few years before the events

here, a “restrictively confined terrorist” attacked a pris-

on guard, stabbing him in the eye with a knife fashioned

from a contraband comb—with tragic consequences. Pet.

App. 143a, 16la (discussing United States v. Salim, 690

F.3d 115 (2d Cir. 2012), cert. denied, 133 S.Ct. 901

(2013))." As Judge Raggi explained in dissent, “it was

hardly irrational for prison authorities to conclude that

persons under investigation for terrorist connections

should be strip searched both randomly in their cells and

whenever they were moved from one location to another

to ensure prison security.” Pet. App. 161la.

" After being attacked by a suspected al Qaeda member, the guard

“suffered brain damage that left his right side partially paralyzed

and interfered with other normal functions, including his ability to

speak and write.” Salim, 690 F.3d at 120.

Kiven if the contrary view were law, that law was not

clearly established—a fact underscored by Judge Raggi’s

disagreement with the panel majority on whether such

searches violate the Fourth Amendment. “If judges thus

disagree on a constitutional question, it is unfair to sub-

ject [officials] to money damages for picking the losing

side of the controversy.” Wilson v. Layne, 526 U.S. 608,

618 (1999)."°

C. Respondents’ Allegations Do Not Plead a Clear

Violation of § 1985(3)

Hasty and Sherman are entitled to immunity with re-

spect to the §1985(3) claim as well.

1. Section 1985(3) makes it unlawful for “two or more

persons” to “conspire * * * for the purpose of depriving

** * any person or class of persons of the equal protec-

Lion of the laws.” For the reasons above, pp. 34-40, sup-

ra, the conduct challenged here did not violate respon-

dents’ clearly established equal-protection rights. A con-

spiracy lo engage in that conduct thus would not amount

to a clearly established violation of § 1985(3).

The Complaint also fails to allege a clearly established

violation of §1985(3) for two additional reasons. First, in

2001, it was unclear whether §1985(3) even applied to

federal officers. See Pet. App. 82a-88a; Hasty, 490 F.3d

'’ The pane! majority stated it was “bound” to deny qualified immu-

nity because it had denied qualified immunity in Hasty, which it

characterized as involving “substantially the same” Fourth Amend-

ment claim. Pet. App. 79a. That prior ruling does not bind this

Court, and its analysis features the defects identified above. See p.

38 n.9, supra. Hasty, moreover, emphasized allegations of succes-

sive strip searches. See 490 F.3d at 172. Here, respondents allege

searches only after intervening events like movement between cells.

Pet. App. 160a-161a.

at 176. Thus, when Hasty and Sherman acted, it could

not have been clear to every reasonable officer that the

alleged conspiracy would violate § 1985(3).

Second, under the intra-corporate (or intra-enterprise)

conspiracy doctrine, a corporation’s “employees, when

acting within the scope of their employment, cannot con-

spire among themselves.” McAndrew v. Lockheed Mar-

tin Corp., 206 F.3d 1031, 1036 (11th Cir. 2000) (en bance);

Pet. App. 82a. Here, the Complaint alleges a conspiracy

among the DOJ Defendants and Hasty and Sherman.

Pet. App. 347a(91305). But the DOJ Defendants, Hasty,

and Sherman all work for a single unit of government—

the DOJ includes BOP and its employees. /d. at 82a-88a

& n.46. For that reason, at least one district court has

ruled that the Attorney General and BOP employees

“cannot conspire together under Section 1985.” Jd. at

83a n.46. The panel majority thus admitted that it was

far from clear whether the alleged conduct violated

§1985(3). It remanded for a determination whether DOJ

and BOP should be considered a single enterprise. /d. at

83a. That remand demonstrates why immunity must be

granted: It was not clear to the Second Circuit whether

the alleged conduct amounted to a “conspiracy” pro-

scribed by §1985(3). A fortiori, it would not have been

clear to “any reasonably competent officer.”

2. Rather than require an unmistakable violation of

§1985(3), the panel denied immunity because it thought

the conduct was clearly proscribed by other sources of

law. In //asty, the Second Circuit had denied immunity

under §1985(3) on the ground that “‘|t/he proper inquiry

is whether the right itself—rather than its souwrce—is

clearly established.’” Hasty, 490 F.3d at i77. Citing

Hasty, the panel majority here declared that “‘federal

officials could not reasonably have believed that it was

legally permissible for them to conspire with other fed

eral officials’” even “‘without a definitive ruling from this

Jourt on the application of section 1985(3).’” Pet. App.

83a.

That theory defies this Court’s precedents. The

“clearly established law” inquiry must be made solely by

reference to the right the defendant was accused of vio-

lating. Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984). In

Davis, a state employee brought due-process and § 1983

claims alleging that he was discharged without appropri-

ate process. /d. at 187. The terminated employee urged

that qualified immunity should be denied because the

defendants’ conduct clearly violated a state regulation.

/d, at 193-194. This Court disagreed, holding that “[o]ffi-

cials sued for violations of rights conferred by a statute

or regulation * * * do not forfeit their immunity by vio-

lating some other” right. Jd. at 194 n.12 (emphasis

added). Those “officials become liable for damages only

to the extent that there is a clear violation of the statu-

tory rights that give rise to the cause of action for dam-

ages.” Ibid. (emphasis added). Even if the defendants

clearly violated a state regulation, they were entitled to

immunity on the due-process and § 1983 claims because

those provisions did not clearly prohibit the conduct. /d.

at 194-195 & n.12.

The Court reiterated that holding in Hlder v. Hollo-

way, 510 U.S. 510 (1994). The question presented there

was: “Is qualified immunity defeated where a defendant

violates any clearly established duty,” or “must the

clearly established right be the federal right on which the

claim for relief is based?” /d. at 515. The Court con-

cluded that Daows “held the latter.” /bid. Here, the

“claim for relief is based” on a putative violation of

§1985(3). Unless Hasty and Sherman clearly violated

that provision, they are entitled to immunity.

Il. THE ALLEGATIONS DO Not MEET /QBAL’S PLAUSI-

BILITY REQUIREMENT

To survive a motion to dismiss under Rule 12(b)(6), “a

complaint must contain sufficient factual matter, accep-

ted as true, to ‘state a claim to relief that is plausible on

its face.’” Iqbal, 556 U.S. at 678 (emphasis added) (quot-

ing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

It does not suffice to “plead facts * * * ‘merely consistent

with’ * * * liability.” /bid. The allegations must eliminate

“‘obvious alternative’” and “more likely” lawful explana-

tions for the challenged conduct. /d. at 682. The Com-

plaint does not meet that standard here.

A. The Complaint Does Not Plead Plausible Due-

Process or Equal-Protection Claims Based on

“Official” Conditions

In /qbal, this Court reversed the Second Circuit’s con-

clusion that the plaintiffs had plausibly alleged that the

FBI detained “‘thousands of Arab Muslim men’” in the

wake of 9/11 with discriminatory intent. 556 U.S. at 681.

The allegations failed to dispel the “‘obvious alternative

explanation’”—that the arrests were made with the

“nondiscriminat y intent to detain aliens who were

illegally presen. in the United States and who had

potential connections to those who committed terrorist

acts.” /d. at 682. Given the origins of the 9/11 attackers,

it was “unsurprising” that so many detainees would be

Arab or Muslim. /bid. Given that alternative explana-

tion, “the purposeful, invidious discrimination” the plain-

tiffs asked the Court to infer was “not a plausible con-

clusion.” [bid.

Respondents’ “official conditions” due-process and

equal-protection claims fail for the same reason. Respon-

dents theorize that Hasty and Sherman detained them in

highly restrictive conditions without a “legitimate non-

punitive penological purpose” in violation of due process,

or based on discriminatory animus in violation of equal

protection. But the Complaint fails to overcome the obvi-

ous alternative explanation—that Hasty and Sherman

were complying with the FBI’s terrorism designations

and BOP policies.

1. The panel did not dispute that the BOP policy—

which required all detainees “of interest” to the FBI’s

terrorism investigation be housed in the most restrictive

conditions permissible—served compelling purposes. It

agreed that “national security concerns could justify

detaining those individuals with suspected ties to terror-

ism in these challenged conditions” for a whole “litany of

reasons.” Pet. App. 46a. And the panel did not dispute

that respondents were designated “of interest” by the

FBI. /d. at 18a, 5la.

That designation provides the most “obvious” reason

for respondents’ detention in restrictive conditions. It

was not discriminatory or arbitrary. Rather, the FBI

provided terrorism designations and, cognizant of the

FBI’s expertise and authority, Hasty and Sherman fol-

lowed them. As the OIG report observed, “the BOP ac-

cepted [the FBI’s| assessment, since the BOP normally

takes ‘at face value’ FBI determinations that detainees

had a potential nexus to terrorism.” J.A. 241. Even the

panel majority accepted that “Hasty and Sherman t?-

lially believed that they would be housing only those

detainees who were suspected of ties to terrorism.” Pet.

App. 52a.

The panel held that the Complaint overcame that

alternative explanation by alleging that Hasty and Sher-

man “eventually knew that the FBI lacked any individu-

alized suspicion for many of the detainees that were sent

to the ADMAX SHU.” Pet. App. 52a (emphasis added).

Absent “individualized suspicion” of terrorism ties, “the

restriction|s| or condition|s] * * * were ‘arbitrary or pur-

poseless.’” Jd. at 45a-46a; see also id. at 50a-5la. But

that theory does not even approach the “plausibility”

threshold.

First, even assuming that Hasty and Sherman some-

how came to “know” that the FBI’s terrorism desig-

nations were wrong, that still does not overcome the most

plausible reason for confining respondents in restrictive

conditions: Whatever Hasty’s and Sherman’s personal

beliefs, they deferred to the FBI’s determinations in view

of that agency’s expertise, experience, and authority.

The FBI, not the local jailers, has experience with na-

tional-security and terrorism matters. The FBI, not the

local jailers, was conducting the 9/11 investigation. The

FBI, not the local jailers, was charged with “identifying

the terrorists who hijacked the airplanes and anyone who

aided their efforts.” J.A. 43. Indeed, Hasty and Sher-

man likely had no authority to overrule FBI designations

or BOP policy dictating the confinement conditions to be

imposed as a result. It is not plausible to infer “purpose-

ful, invidious discrimination,” /gbal, 556 U.S. at 682, or

arbitrarily punitive conditions, Wolfish, 441 U.S. at 538-

539, from obedience to FBI determinations and binding

policy from “BOP headquarters,” Pet. App. 50a—even if

one assumes Hasty and Sherman disagreed.

Second, the allegation that Hasty and Sherman

“knew” respondents had no terrorism connections—and

thus should not have been “of interest” to the FBI's

investigation—defies plausibility as well. Pet. App. 52a.

According to the Complaint and the panel, Hasty and

Sherman supposedly came to know that respondents had

no terrorism connections because the MDC received

“regular written updates” explaining why each detainee

was arrested, as well as “‘evidence relevant to the

danger’” each detainee “‘might pose’ to the MDC.” /bid.

According to the Complaint, those “updates often lacked

any indication of a suspicion of a tie to terrorism.” /bid.

But the Complaint offers no reason why Hasty and

Sherman would believe the FBI was sending, into a pri-

son, “written updates” with ail the potentially sensitive

domestic and foreign intelligence information it was

obtaining about detainees. The Complaint, moreover, al-

leges that the updates contained only “‘evidence relevant

to the danger [the detainees] might pose’ to the MDC,”

Pet. App. 52a (emphasis added)—not all information in-

telligence agencies had gathered connecting detainees to

terrorism. The allegation that Hasty and Sherman

thereby knew the FBI had no individualized suspicion

does not register as “‘conceivable,”” much less cross

“‘the line from conceivable to plausible.’” Jgbal, 556 U.S.

at 680.

2. Nor can the panel’s alternative “mendacity” the-

ory push the allegations across that line. Pet. App. 68a.

Departing from the district court, the panel inferred dis-

criminatory intent from an unspecified memorandum,

with an unstated date and purpose, that supposedly

contained the false statement that MDC “executive staff

*** had classified the ‘suspected terrorists’ as ‘High

Security’ based on an individualized assessment.” /d. at

68a-69a (quotation marks omitted); see id. at 53a. Ac-

cording to the panel, that was false because neither Has-

ty nor Sherman had conducted such an assessment. /d.

at 68a-69a. “(I]t is reasonable to infer,” the panel declar-

ed, “that Hasty and Sherman approved this false docu-

ment to justify detaining actual or perceived Arabs and

Muslims in the harsh conditions of the ADMAX SHU”

arbitrarily or “based on discriminatory intent.” /d. at

69a.

As Judge Raggi pointed out, the panel’s novel theory

fails to account for the “obvious| ] and more likely” expla-

nation—that, in suggesting individualized assessments

had been conducted, MDC officials were properly “re-

I[ying| on the FBI’s designations.” Pet. App. 157a. As

the OIG report observed, “the BOP normally takes ‘at

face value’ FBI determinations that detainees had a po-

tential nexus to terrorism.” J.A. 241. The cited docu-

ment itself makes that clear.'* It does not state that

MDC staff “classified the ‘suspected terrorists’ as ‘High

Security.’” Pet. App. 279a(174). It says MDC staff “de-

termined” that the detainees “have been classified” —pre-

sumably by the FBI—“as ‘High Security’ inmates.” Has-

ty Pet. App., No. 15-1363, at 467a (emphasis added). The

cited memorandum, moreover, was developed “to provide

staff with consistent guidelines and procedures” in

handling “suspected terrorism inmates” before they

arrived: It is dated three days after the 9/11 attacks,

before any respondent arrived at MDC." It is not plaus-

“ The document is cited by and thus incorporated by reference in the

Complaint. See 2 Moore’s Federal Practice § 12.34[2] & n.35 (3d ed.

2015); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.

1993) (court may consider document “in plaintiffs’ possession or of

which plaintiffs had knowledge and relied on in bringing suit”).

' The memorandum is dated September 14, 2001. Hasty Pet. App.,

No. 15-1363, at 466a. The earliest any respondent was arrested or

transported to the MDC is September 16, 2001. See Pet. App.

302a(9142) (Abbasi); id. at 306a(99 157-158) (Mehmood); id. at

—

ible that a document dated before the detainees’ arrival

was intended to convey that Hasty and Sherman had per-

sonally made individualized determinations for unknown

detainees.

The panel refused to accept the “obvious” and “likely”

explanation that the memorandum was referring to the

FBI’s designations. That explanation, it asserted, was

“belie|d]” by the Complaint’s “alleg[ations] that the

‘MDC Defendants were aware that the FBI had not de-

veloped any information’ to tie the 9/11 detainees to ter-

rorism.” Pet. App. 70a. That makes no sense. The panel

elsewhere acknowledged that Hasty and Sherman may

have “initially” believed the designations lawful, and on-

ly “eventually knew that the FBI lacked any individual-

ized suspicion for many of the detainees.” Jd. at 52a

(second emphasis added). The panel nowhere suggested

that Hasty and Sherman had already come to believe the

FBI's designations were unfounded when the cited docu-

ment was created, before any respondent arrived at

MDC.

Far from supporting a “plausible” inference that Has-

ty and Sherman imposed the restrictive conditions of

confinement with discriminatory intent, the document

shows the opposite. It admonishes MDC staff to “per-

form their assigned duties in a professional manner” and

prohibits “humiliat{ing] and provokling]” the detainees.

Hasty Pet. App., No. 15-1363, at 466a (“Professionalism

must be demonstrated at all times * * * .”). Because the

allegations fail to refute the “obvious alternative” and

lawful explanation for the official confinement conditions,

3lla(1174) (Benatta); id. at 318a-319a(49 196-198) (Khalifa); id. at

324a (1217) (Hammouda); id. at 328a (91 230-232) (Bajracharya).

the due-process and equal-protection claims—as well as

the § 1985(3) claims—must fail. /qgbal, 556 U.S. at 682;

see Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (re-

quiring “racial, or perhaps otherwise class-based, in-

vidiously discriminatory animus” under § 1985(3)).

B. Respondents Do Not Allege Plausible Fourth

Amendment Claims

Respondents’ allegation that “they were subject to un-

reasonable *** strip searches” under an unwritten

policy, Pet. App. 75a, fails 7qgbal’s requirements as well.

1. The Complaint fails to plausibly allege Hasty’s

and Sherman’s personal involvement. It avers that Has-

ty ordered other MDC officials to “design extremely re-

strictive conditions of confinement,” and that the con-

finement conditions were “approved and implemented

by Hasty and Sherman.” Pet. App. 279a(1175) (emphasis

added). From that, the panel inferred that Hasty and

Sherman also ordered and approved an wnwritten “strip

search policy.” /d. at 76a. That, however, is just specula-

tion. The supposed “policy” was “never put in writing.”

/d. at 292a(1112). The Complaint offers no facts showing

that Hasty and Sherman somehow reviewed or approved

that unwritten policy.

The panel inferred the supposed “policy” from the

treatment respondents allegedly received. See Pet. App.

76a-78a. Respondents claim that they were strip search-

ed upon arrival at the MDC, after being transported to

the ADMAX SIIU, and “every time they were removed

from or returned from their cell,” including for lawyer

visits, medical care, attending court hearings, or “being

transferred to another cell.” /d. at 292a("%111). But

there is no allegation that Hasty or Sherman was in-

volved in or observed those searches, or that those

searches occurred pursuant to the policy Hasty or Sher-

man allegedly approved.'®

2. In any event, the Complaint cites no facts sugges-

ting Hasty or Sherman was aware of a strip-search policy

not “reasonably related to legitimate penological inter-

ests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The no-

reasonable-relationship requirement is met only when

the “logical connection between the [policy| and the

asserted goal is so remote as to render the policy

arbitrary or irrational.” Jd. at 89-90. Here, the “policy”

alleged in the Complaint had a “logical connection” to

prison security concerns—the searches were conducted

after events involving prisoner movements and visits.

See p. 42, supra. The panel asserted that respondents

were “strip searched when there was no possibility that

they could have obtained contraband.” Pet. App. 77a.

But, as Judge Raggi noted, the judgment whether

respondents could obtain contraband when being

transferred in and out of their cells and meeting with

others “is precisely the sort of ‘difficult judgment] | con-

cerning institutional operations’ that [this] Court has

concluded must be made by ‘prison administrators.’” /d.

at 161a (quoting Safley, 482 U.S. at 89).

‘visual search log’ * * * for review by MDC management” cannot fill

the gap. Pet. App. 293a(7 114) (emphasis added); see id. at 77a. ‘The

contents of the search log are undescribed; the Complaint does not

suggest it contains details that make abuse obvious, or that they

reveal a pattern showing abuse. Fven if one assumes Hasty and

Sherman reviewed the logs, that does not give rise to a plausible con-

clusion that they, through their “own individual actions,” sanctioned

the practices complained of. Jgbal, 556 U.S. at 676.

In the aftermath of 9/11, and in light of serious attacks

by other terrorism detainees held under restrictive con-

ditions, see p. 42 & n.12, supra, the unlawfulness of even

an aggressive strip-search policy for designated detain-

ees is hardly apparent. It is not plausible that Hasty and

Sherman not only were personally involved in the strip

searches but knew they were so “irrational” as to lack a

“reasonablle]| relati|ionship] to legitimate penological in-

terests.” Safley, 482 U.S. at 89.

C. The Complaint Does Not Plausibly Allege Has-

ty’s Liability for the “Unofficial” Conditions

It is now settled that “Government officials may not be

held liable for the unconstitutional conduct of their sub-

ordinates under a theory of respondeat superior.” Iqbal,

556 U.S. at 676. Instead, plaintiffs must plead that each

official violated the Constitution “through [his] own indi-

vidual actions.” /bid. Supervisors are not liable for their

subordinates’ misconduct unless they “knew of, and dis-

regarded” instances of abuse so serious and unaddressed

or attended to by other means that it was incumbent on

them to intervene. Walker v. Schultz, 717 F.3d 119, 125,

129 (2d Cir. 2013); see Iqbal, 556 U.S. at 676-677. The

supervisor must have known of both the serious condi-

tions and the circumstances that required the super-

visor’s intervention to prevent harm.

In this case, the Complaint alleges a range of unauth-

orized abuses by line-level correctional officers. That

conduct does not reflect this Nation’s (or Hasty’s and

Sherman’s) values. But the Complaint fails to plausibly

allege that Hasty or Sherman was responsible for that

conduct. They are not alleged to have engaged in it

themselves. Nor does the Complaint identify any in-

stance where they witnessed those abuses. As the OIG

report concluded, none of the abuse “was engaged in or

condoned by anyone other than the correctional officers

who committed it.” J.A. 299 n.130. And indeed, the panel

found no plausible claim against Sherman. While the

Complaint averred that “Sherman made rounds on the

ADMAX SHU and was aware of conditions there,” Pet.

App. 260a(126), those “general and conclusory” allega-

tions “lack|ed} a specific factual basis to support a claim

that Sherman was aware of the particular abuses at

issue.” Jd. at 57a.

The panel nonetheless upheld similar claims against

Sherman’s own supervisor, Hasty. See Pet. App. 56a-

57a. Its analysis, however, was perfunctory at best. It

consisted of a four-sentence paragraph that merely listed

the allegations seriatim. /qbal, however, requires anal-

ysis of the Complaint’s plausibility—including the plau-

sibility of the conclusions in light of other conceded

allegations in the Complaint—not a mere recitation of

allegations.

While the Complaint alleges generally that Hasty was

made aware of abuse, Pet. App. 260a(9124), it makes no

allegation that any subordinate, anyone at BOP, or any-

one at OIG informed Hasty of any guard misconduct, or,

more properly, of misconduct that required his interven-

tion because it was not being properly addressed by the

ordinary mechanisms for redress within the prison. The

panel primarily invoked “allegations that Hasty avoided

evidence of detainee abuse by ‘neglecting to make

rounds.’” /d. at 56a (quoting id. at 260a(124)) (emphasis

added). Even assuming that allegation is true, the panel

ignored the “obvious alternative explanation.” /qbal, 556

U.S. at 682. As Warden, Hasty oversaw an enormous

facility. Consequently, before any 9/11 detainee arrived,

Hasty had delegated primary “responsibility for super-

vising all MDC correctional officers, including those who

worked on the ADMAX,” to the Captain of the MDC.

Pet. App. 261a(%27); see J.A. 232. The “Captain” was

“the highest-ranking correctional officer with direct re-

sponsibility for custody operations in the ADMAX SHU.”

J.A. 230 n.95. Beneath him, the “SHU Lieutenant [wa]s

directly responsible for supervision of the staff members

assigned to the [ADMAX] unit.” Hasty Pet. App., No.

15-1363, at 467a. That hierarchy explains any admin-

istrative distance between Hasty and daily events at the

ADMAX SHU. Necessary delegation of authority and

reliance on subordinates provides a far “more likely” ex-

planation for any failure to make rounds. /qbal, 556 U.S.

at 682.

The panel suggested that certain paragraphs of the

Complaint “detail |” Hasty’s awareness of abuse. Pet.

App. 56a-57a. But no “detail” is provided, and even the

generalized assertions fail to overcome “obvious” lawful

explanations. For example, the panel identified allega-

tions that “Hasty made it difficult for detainees to file

complaints.” /bid. But the allegations do not suggest

how Hasty was involved in those difficulties. In fact, the

difficulty identified in both the Complaint and the OIG

report had nothing to do with Hasty. From the time the

ADMAX SHU was established, MDC had an organized

system for registering and addressing prisoner com-

plaints that was set forth in a manual to be given to pris-

oners. J.A. 239-240, 276-278. The impediment to filing

complaints was the failure of some guards to provide, or

to allow detainees to keep, those manuals. Pet. App.

301a(91140); J.A. 276-278, 299-300. There is no allegation

that Hasty ordered, knew of, or was involved with, that

mistake.

The panel also invoked an allegation that staff mem-

bers who reported abuse were called “snitches.” Pet.

App. 55a. But the Complaint does not say Hasty used

that term, or even that he knew others did. Pet. App.

281a (978).

And finally, the panel embraced the theory that Has-

ty’s knowledge of serious abuse could be inferred because

the abuses were so “pervasive” that video cameras were

installed in cells and hallways. Pet. App. 57a. But the

initial directive to put video monitors in cells issued

within two days of 9/11, before respondents arrived and

any abuse could have occurred. J.A. 279 & n.126. And

any enhancements to the videotaping efforts reflect an

“affirmative step| |” by “MDC management * * * to pre-

vent potential staff abuse.” /d. at 300 (emphasis added);

see id. at 279-280.

The panel’s opinion illustrates precisely how /qbal’s

“plausibility” analysis should not be applied.

CONCLUSION

The decision of the court of appeals should be re-

versed.

CLIFTON S. ELGARTEN

SHARI Ross LAHLOU

KATE M. GROWLEY

CROWELL & MORING LLP

1001 Pennsylvania Ave., NW

Washington, D.C. 20004

(202) 624-2500

celgarten@crowell.com

Counsel for Dennis Hasty

NOVEMBER 2016

Respectfully submitted.

JEFFREY A. LAMKEN

Counsel of Record

MICHAEL G. PATTILLO, JR.

ERIC R. NITZ

JAMES A. BARTA

MOLOLAMKEN LLP

The Watergate, Suite 660

600 New Hampshire Ave., NW

Washington, D.C. 20037

(202) 556-2000

jlamken@mololamken.com

SARA E. MARGOLIS

MOLOLAMKEN LLP

430 Park Ave.

New York, N.Y. 10022

(212) 607-8160

DEBRA L. ROTH

JULIA H. PERKINS

SHAW BRANSFORD & ROTH

1100 Connecticut Ave., NW

Suite 900

Washington, D.C. 20036

(202) 463-8400

Counsel for James Sherman

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.