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Turkmen v. Hasty

United States Court of Appeals, Second Circuit

June 17, 2015

IBRAHIM TURKMEN, AKHIL SACHDEVA, AHMER IQBAL ABBASI, ANSER MEHMOOD, BENAMAR BENATTA, AHMED KHALIFA, SAEED HAMMOUDA, PURNA BAJRACHARYA, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees-Cross-Appellants,
v.
DENNIS HASTY, former Warden of the Metropolitan Detention Center, MICHAEL ZENK, former Warden of the Metropolitan Detention Center, JAMES SHERMAN, former Metropolitan Detention Center Associate Warden for Custody, Defendants-Appellants, JOHN ASHCROFT, former Attorney General of the United States, ROBERT MUELLER, former Director, Federal Bureau of Investigation, JAMES W. ZIGLAR, former Commissioner, Immigration and Naturalization Service, Defendants-Cross-Appellees, SALVATORE LOPRESTI, former Metropolitan Detention Center Captain, JOSEPH CUCITI, former Metropolitan Detention Center Lieutenant, Defendants.

Argued May 1, 2014.

As Amended June 22, 2015.

As Amended June 24, 2015.

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

RACHEL A. MEEROPOL, Center for Constitutional Rights, New York, N.Y. (Michael Winger, Sunita Patel, Baher A. Azmy, Center for Constitutional Rights, New York, NY; Nancy L. Kestenbaum, Jennifer L. Robbins, Joanne Sum-Ping, Covington & Burling LLP, New York, NY, on the brief), for Plaintiffs-Appellees-Cross-Appellants.

HUGH D. SANDLER, Crowell & Moring LLP, New York, N.Y. (Shari Ross Lahlou, Crowell & Moring LLP, Washington, D.C., on the brief), for Defendant-Appellant Dennis Hasty.

JOSHUA C. KLEIN (Allan N. Taffet, Kirk L. Brett, Megan E. Uhle, on the brief), Duval & Stachenfeld LLP, New York, NY, for Defendant-Appellant Michael Zenk.

JEFFREY A. LAMKEN, MoloLamken LLP, Washington, D.C. (Martin V. Totaro, MoloLamken LLP, Washington, D.C.; Debra L. Roth, Julia H. Perkins, Shaw, Bransford & Roth P.C., Washington, D.C., on the brief), for Defendant-Appellant James Sherman.

H. THOMAS BYRON III, Appellate Attorney, Civil Division (Stuart F. Delery, Assistant Attorney General, Ronald C. Machen Jr., United States Attorney, Dana Boente, United States Attorney, Barbara L. Herwig, Appellate Attorney, Civil Division, on the brief), U.S. Department of Justice, Washington, D.C., for Defendants-Cross-Appellees John Ashcroft and Robert Mueller.

WILLIAM ALDEN MCDANIEL, JR., Ballard Spahr LLP, Baltimore, MD, for Defendant-Cross-Appellee James W. Ziglar.

Trina Realmuto, National Immigration Project of the National Lawyers Guild, Boston, MA; Mary Kenney, American Immigration Council, Washington, D.C., amici curiae in support of Plaintiffs-Appellees-Cross-Appellants.

Before: POOLER, RAGGI, AND WESLEY, Circuit Judges. REENA RAGGI, Circuit Judge, concurring in part in judgment and dissenting in part.

OPINION

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Pooler and Wesley, Circuit Judges :

On September 11, 2001, " 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda" hijacked four airplanes and killed over 3,000 people on American soil. Ashcroft v. Iqbal ( Iqbal ), 556 U.S. 662, 682, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This case raises a difficult and delicate set of legal issues concerning individuals who were caught up in the post-9/11 investigation even though they were unquestionably never involved in terrorist activity. Plaintiffs are eight male, " out-of-status" aliens[1] who were arrested on immigration charges and detained following the 9/11 attacks. Plaintiffs were held at the Metropolitan Detention Center (the " MDC" ) in Brooklyn, New York, or the Passaic County Jail (" Passaic" ) in Paterson, New Jersey; their individual detentions generally ranged from approximately three to eight months.

The operative complaint, a putative class action, asserts various claims against former Attorney General John Ashcroft; former Director of the Federal Bureau of Investigation (the " FBI" ) Robert Mueller; former Commissioner of the Immigration and Naturalization Service (the " INS" ) James Ziglar; former MDC Warden Dennis Hasty; former MDC Warden Michael Zenk; and former MDC Associate Warden James Sherman.[2] All claims arise out of allegedly discriminatory and punitive treatment Plaintiffs suffered while confined at the MDC or Passaic.

BACKGROUND

I. Procedural History[3]

Plaintiffs initiated this action over thirteen years ago on April 17, 2002. Over the following two and one-half years, Plaintiffs amended their complaint three times. In June 2006, following a series of motions to

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dismiss, the district court dismissed Plaintiffs' unlawful-length-of-detention claims but permitted to proceed, inter alia, the substantive due process and equal protection claims challenging the conditions of confinement at the MDC. See Turkmen v. Ashcroft ( Turkmen I ), No. 02 CV 2307(JG), 2006 WL 1662663, at *33-36, 40-41 (E.D.N.Y. June 14, 2006), aff'd in part, vacated in part, Turkmen v. Ashcroft ( Turkmen II ), 589 F.3d 542 (2d Cir. 2009) (per curiam), remanded to Turkmen III, 915 F.Supp.2d at 314. Plaintiffs and Defendants appealed various aspects of that ruling.

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

On remand, the district court permitted Plaintiffs to amend their complaint and granted leave for six additional Plaintiffs, all of whom had been held at the MDC, to intervene. The eight current named Plaintiffs are of Middle Eastern, North African, or South Asian origin; six of them are Muslim, one is Hindu, and one is Buddhist. The Fourth Amended Complaint (the " Complaint" ), the operative complaint in this case, restates Plaintiffs' putative class claims on behalf of the " 9/11 detainees," a class of similarly situated non-citizens who are Arab or Muslim, or were perceived by Defendants as Arab or Muslim, and were arrested and detained in response to the 9/11 attacks.[4]

The Complaint dramatically winnowed the relevant claims and defendants; it alleges seven claims against eight defendants. The first six claims, all brought pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), are: (1) a conditions of confinement claim under the Due Process Clause; (2) an equal protection claim alleging that Defendants subjected Plaintiffs to the challenged conditions because of their, or their perceived, race, religion, ethnicity, and/or national origin; (3) a claim arising under the Free Exercise Clause; (4) and (5) two claims generally alleging interference with counsel; and (6) a claim under the Fourth and Fifth Amendments alleging unreasonable and punitive strip searches. The seventh and final claim alleges a conspiracy under 42 U.S.C. § 1985(3). The DOJ and MDC Defendants moved to dismiss the Complaint for failure to state a claim, on qualified immunity grounds, and, in some instances, based on a theory that Bivens relief did not extend to the claim at issue.

II. The OIG Reports

Plaintiffs supplemented the factual allegations in their amended complaints with

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information gleaned from two reports by the Office of the Inspector General of the United States Department of Justice (the " OIG reports" )[5] that documented the federal law enforcement response to 9/11 and conditions at the MDC and Passaic.

The OIG reports, which the Complaint " incorporate[s] by reference except where contradicted by the allegations of [the Complaint]," Compl. ¶ 3 n.1, see also id. ¶ 5 n.2, play a significant role in this case.[6] Primarily, the OIG reports provide invaluable context for the unprecedented challenges following 9/11 and the various strategies federal agencies employed to confront these challenges. The reports help orient our analysis of the Complaint.

III. Plaintiffs' Allegations[7]

In the aftermath of the 9/11 attacks, the FBI and other agencies within the DOJ immediately initiated an immense investigation aimed at identifying the 9/11 perpetrators and preventing any further attacks. See OIG Report at 1, 11-12. PENTTBOM, the Pentagon/Twin Towers Bombings investigation, was initially run out of the FBI's field offices, but shortly thereafter, Mueller ordered that management of the investigation be switched to the FBI's Strategic Information and Operations Center (the " SIOC" ) at FBI Headquarters in Washington, D.C. Mueller personally directed PENTTBOM from the SIOC and remained in daily contact with FBI field offices.

In conjunction with PENTTBOM, the Deputy Attorney General's Office (the " DAG's Office" ) established the SIOC Working Group to coordinate " efforts among the various components within the [DOJ] that had an investigative interest in[,] or responsibility for[,] the September

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11 detainees." Id. at 15.[8] The SIOC Working Group included representatives from, among other agencies, the FBI, the INS, and the DAG's Office. This group met daily--if not multiple times in a single day--in the months following 9/11; its duties included " coordinat[ing] information and evidence sharing among the FBI, INS, and U.S. Attorneys' offices" and " ensur[ing] that aliens detained as part of the PENTTBOM investigation would not be released until they were cleared by the FBI of involvement with the September 11 attacks or terrorism in general." Id.

Given that the 9/11 hijackers were all foreign nationals, the DOJ response carried a major immigration law component. See id. at 12. Ashcroft and Mueller developed " a policy whereby any Muslim or Arab man encountered during the investigation of a tip received in the 9/11 terrorism investigation . . . and discovered to be a non-citizen who had violated the terms of his visa, was arrested." Compl. ¶ 1; see also id. ¶ ¶ 39-49. Ashcroft also created the related " hold-until-cleared" policy, which mandated that individuals arrested in the wake of 9/11 not be released from " custody until [FBI Headquarters] affirmatively cleared them of terrorist ties." Id. ¶ 2; see also OIG Report at 38-39.

Within a week of 9/11, the FBI had received approximately 96,000 tips from civilians across the country. These tips varied significantly in quality and reliability.[9] " Mueller [nonetheless] ordered that every one of these tips be investigated, even if they were implausible on their face." Compl. ¶ 40. Ultimately, 762 detainees were placed on the INS Custody List (the " INS List" ) that then made them subject to Ashcroft's hold-until-cleared policy.

In the months following 9/11, the DOJ Defendants " received detailed daily reports of the arrests and detentions." Id. ¶ 47. Ashcroft and Mueller also " met regularly with a small group of government officials in Washington, D.C., and mapped out ways to exert maximum pressure on the individuals arrested in connection with the terrorism investigation." Id. ¶ 61.[10] This small group " discussed and decided upon a strategy to restrict the 9/11 detainees' ability to contact the outside world and delay their immigration hearings. The group also decided to spread the word among law enforcement personnel that the

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9/11 detainees were suspected terrorists[] . . . and that they needed to be encouraged in any way possible to cooperate." Id.

Plaintiffs, with the exception of Turkmen and Sachdeva, were held at the MDC. Under MDC confinement policy, the 9/11 detainees placed in the MDC were held in the MDC's Administrative Maximum Special Housing Unit (the " ADMAX SHU" )--" a particularly restrictive type of SHU not found in most [Bureau of Prisons ('BOP')] facilities because the normal SHU is usually sufficient for correcting inmate misbehavior and addressing security concerns." Id. ¶ 76. The confinement policy was created by the MDC Defendants " in consultation with the FBI." Id. ¶ 65.

Conditions in the ADMAX SHU were severe and began to receive media attention soon after detentions began. See OIG Report at 2, 5. Detainees were: " placed in tiny cells for over 23 hours a day," Compl. ¶ 5; " strip-searched every time they were removed from or returned to their cell[s], . . . even when they had no conceivable opportunity to obtain contraband," id. ¶ 112; provided with " meager and barely edible" food, id. ¶ 128; denied sleep by " bright lights" that were left on in their cells for 24 hours a day, id. ¶ 119, and, " [o]n some occasions, correctional officers walked by every 20 minutes throughout the night, kicked the doors to wake up the detainees, and yelled" highly degrading and offensive comments, id. ¶ 120; constructively denied recreation and exposed to the elements, see id. ¶ ¶ 122-23; " denied access to basic hygiene items like toilet paper, soap, towels, toothpaste, [and] eating utensils," id. ¶ 130; and prohibited from moving around the unit, using the telephone freely, using the commissary, or accessing MDC handbooks, which explained how to file complaints about mistreatment, see id. ¶ ¶ 76, 83, 129, 140.

MDC staff also subjected the 9/11 detainees to frequent physical and verbal abuse. The abuse included slamming the 9/11 detainees into walls; bending or twisting their arms, hands, wrists, and fingers; lifting them off the ground by their arms; pulling on their arms and handcuffs; stepping on their leg restraints; restraining them with handcuffs and/or shackles even while in their cells; and handling them in other rough and inappropriate ways. See id. ¶ 105; see also Supplemental OIG Report at 8-28. MDC staff also referred to the 9/11 detainees as " 'terrorists,' and other offensive names; threaten[ed] them with violence; curs[ed] at them; insult[ed] their religion; and ma[de] humiliating sexual comments during strip-searches." Compl. ¶ 109. Specifically, Plaintiffs and putative class members at the MDC were referred to by staff as " camel[s]," " fucking Muslims," and " Arabic asshole[s]," id. ¶ ¶ 110, 147, 218.

The MDC Plaintiffs did not receive copies of the Koran for weeks or months after requesting them, and one Plaintiff never received a copy, " pursuant to a written MDC policy . . . that prohibited the 9/11 detainees from keeping anything, including a Koran, in their cell[s]." Id. ¶ 132. The MDC Plaintiffs were also " denied the Halal food required by their Muslim faith." Id. ¶ 133. And " MDC staff frequently interrupted Plaintiffs' and class members' prayers," including " by banging on cell doors," yelling derogatory comments, and mocking the detainees while they prayed. Id. ¶ 136.

The named MDC Plaintiffs' individual experiences--several of which are highlighted below--add further texture to their collective allegations concerning the arrest and confinement of the 9/11 detainees.

A. Anser Mehmood

Mehmood, a citizen of Pakistan and devout Muslim, entered the United States on

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

On the morning of October 3, 2001, Mehmood was asleep with Uzma and their one-year-old son when FBI and INS agents knocked on his door. The agents searched Mehmood's home and asked whether he " was involved with a jihad." Id. ¶ 157. Mehmood admitted that he had overstayed his visa. The FBI informed Mehmood that they were not interested in him; they had come to arrest his wife Uzma, whose name the FBI had encountered when investigating Plaintiff Ahmer Abbasi, her brother. Mehmood convinced the FBI to arrest him instead of Uzma because their son was still breastfeeding. " The Agent told Mehmood that they had no choice but to arrest one of the parents, but that Mehmood faced a minor immigration violation only, and he would be out on bail within days." Id. ¶ 159.

Upon his arrival at the MDC, Mehmood " was dragged from the van by several large correctional officers, who threw him into several walls on his way into the facility." Id. ¶ 162. " His left hand was broken during this incident" and " [t]he guards threatened to kill him if he asked any questions." Id. His experience in the ADMAX SHU tracked that of other 9/11 detainees. For instance, " [w]henever Mehmood was removed from his cell, he was placed in handcuffs, chains, and shackles. Four or more MDC staff members typically escorted him to his destination, frequently inflicting unnecessary pain along the way, for example, by banging him into the wall, dragging him, carrying him, and stepping on his shackles and pushing his face into the wall." Id. ¶ 166. Neither the FBI nor INS interviewed Mehmood following his arrest. Mehmood was not released from the ADMAX SHU until February 6, 2002.

B. Ahmed Khalifa

Khalifa, who had completed five years toward a medical degree at the University of Alexandria in Egypt, came to the United States on a student visa in July 2001. He came to the FBI's attention after the FBI received a tip that " several Arabs who lived at Khalifa's address were renting a post-office box, and possibly sending out large quantities of money." Id. ¶ 195. On September 30, 2001, FBI, INS, and officers from the New York City Police Department came to the apartment Khalifa shared with several Egyptian friends. The officers searched his wallet and apparently became " very interested in a list of phone numbers of friends in Egypt." Id. ¶ 196. After searching the apartment, the agents asked Khalifa for his passport and " if he had anything to do with September 11." Id. ¶ 197. One FBI agent told Khalifa that they were only interested in three of his roommates, but another agent said they also needed Khalifa, whom they arrested for " working without authorization." Id.

On October 1, 2001, after briefly stopping at a local INS detention facility to complete paperwork, Khalifa and his roommates were transported to the MDC. When he arrived at the MDC, Khalifa " was slammed into the wall, pushed and kicked by MDC officers and placed into a wet cell, with a mattress on the floor." Id. ¶ 201. " [His] wrists were cut and bruised from his handcuffs, and he was worried

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about other detainees, whom he heard gasping and moaning through the walls of his cell." Id.

FBI and INS agents interviewed Khalifa on October 7, 2001. One of the agents apologized to Khalifa after noticing the bruises on his wrists. When Khalifa stated that MDC guards were abusing him, the agents " stated it was because he was Muslim." Id. ¶ 202. In notes from the interview, the agents did not question Khalifa's credibility, and noted no suspicion of ties to terrorism or interest in him in connection with PENTTBOM.

Following the interview, MDC guards strip searched Khalifa and " laughed when they made him bend over and spread his buttocks." Id. ¶ 203. Khalifa complains of the conditions associated with detention in the ADMAX SHU, including arbitrary and abusive strip searches, sleep deprivation, constructive denial of recreational activities and hygiene items, and deprivation of food and medical attention.

By November 5, 2001, the New York FBI field office affirmatively cleared Khalifa of any ties to terrorism and sent his name to FBI Headquarters for final clearance. Khalifa was not officially cleared until December 19, 2001. He remained confined in the ADMAX SHU until mid-January 2002.

C. Purna Raj Bajracharya

Bajracharya is neither Muslim nor Arab. He is a Buddhist and native of Nepal who entered the United States on a three-month business visa in 1996. After overstaying his visa, Bajracharya remained in Queens, New York, for five years, working various odd jobs to send money home to his wife and sons in Nepal. Having planned to return home in the fall or winter of 2001, Bajracharya used a video camera to capture the streets he had come to know in New York. He came to the FBI's attention on October 25, 2001, when a Queens County District Attorney's Office employee " observed an '[A]rab male' videotaping outside a Queens[] office building that contained the Queens County District Attorney['s] Office and a New York FBI office." Id. ¶ 230. When approached by investigators from the District Attorney's Office, Bajracharya tried to explain that he was a tourist. The investigators took him inside the building and interrogated him for five hours. FBI and INS agents arrived at some point during the interrogation. Bajracharya subsequently took the agents to his apartment; provided them with his identification documents, which established his country of origin; and admitted to overstaying his visa.

Apparently due to the videotaping, Bajracharya was designated as being of " special interest" to the FBI and on October 27, 2001, he was transported to the MDC. Id. ¶ ¶ 233-34. On October 30, 2001, the FBI agent assigned to Bajracharya's case, along with other law enforcement personnel, interviewed him with the aid of an interpreter. During the interview, " Bajracharya was asked whether he was Muslim or knew any Muslims." Id. ¶ 235. Bajracharya explained that he was not Muslim and knew no Muslims. The FBI agent's notes from the interview do not question Bajracharya's credibility or express any suspicion of ties to terrorism. Two days later, the same agent affirmatively cleared Bajracharya of any link to terrorism. By November 5, 2001, the New York FBI field office completed its investigation and forwarded Bajracharya's case to FBI Headquarters for final clearance. Documents at FBI Headquarters note that the FBI had no interest in Bajracharya by mid-November 2001. Nonetheless, he was not released from the ADMAX SHU until January 13, 2002. The FBI agent assigned to Bajracharya's case did not understand

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why Bajracharya remained in the ADMAX SHU throughout this period; the agent eventually called the Legal Aid Society and advised an attorney that Bajracharya needed legal representation.

Bajracharya, who is 5'3" and weighed about 130 pounds at the time of his arrest, complains of the same conditions common to the other MDC Plaintiffs. For instance, he could not sleep due to the light in his cell, and when he was removed from his cell, he would be placed in handcuffs, chains, and shackles and escorted by four or more MDC staff members. Bajracharya became so traumatized by his experience in the ADMAX SHU that he wept constantly. When an attorney requested that the MDC transfer Bajracharya to general population, an MDC " doctor responded that Bajracharya was crying too much, and would cause a riot." Id. ¶ 241.

IV. The New York List and the " Of Interest" Designation

As originally articulated by Ashcroft, following 9/11, the DOJ sought to prevent future terrorism by arresting and detaining those people who " have been identified as persons who participate in, or lend support to, terrorist activities." OIG Report at 12 (internal quotation marks omitted). To that end, Michael Pearson, who was then INS Executive Associate Commissioner for Field Operations, issued a series of Operational Orders, which addressed the responsibilities of INS agents operating with the FBI to investigate leads on illegal aliens. A September 22, 2001 order instructed agents to " exercise sound judgment" and to limit arrests to those aliens in whom the FBI had an " interest" and discouraged arrest in cases that were " clearly of no interest in furthering the investigation of the terrorist attacks of September 11th." Id. at 45 (internal quotation marks omitted). The " of interest" designation by an FBI agent had significant implications for a detainee. " Of interest" detainees were placed on the INS List, subject to the hold-until-cleared policy, and required FBI clearance of any connection to terrorism before they could be released or removed from the United States. Detainees who were not designated " of interest" to the FBI's PENTTBOM investigation were not placed on the INS List, did not require clearance by the FBI, and could be processed according to normal INS procedures. Id. at 40.

The arrest and detention mandate was not uniformly implemented throughout the country. Specifically, the New York FBI investigated all PENTTBOM leads without vetting the initial tip and designated as " of interest" " anyone picked up on a PENTTBOM lead . . . regardless of the strength of the evidence or the origin of the lead." Id. at 41; see also Compl. ¶ ¶ 43-45. For instance, days after 9/11, New York City police stopped three Middle Eastern men in Manhattan on a traffic violation and found plans to a public school in the car. The next day, their employer confirmed that the men had the plans because they were performing construction work on the school. Nonetheless, the men were arrested and detained. See OIG Report at 42. In another instance, a Middle Eastern man was arrested for illegally crossing into the United States from Canada over a week before 9/11. After the attacks, the man was placed on New York's " 'special interest' list even though a document in his file, dated September 26, 2001, stated that FBI New York had no knowledge of the basis for his detention." Id. at 64 (internal quotation marks omitted).

In many cases, the New York FBI did not even attempt to determine whether the alien was linked to terrorism,

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see id. at 14, 16, 41-42, 47, and it " never labeled a detainee 'no interest' until after the clearance process was complete," id. at 18 (emphasis added). Thus, aliens encountered and arrested pursuant to a PENTTBOM lead in New York were designated " of interest" (or special interest) and held until the local field office confirmed they had no ties to terrorism. Id. at 14; see also id. at 53.[11] The result was that the MDC Plaintiffs and others similarly situated in New York were held at the MDC ADMAX SHU as if they met the national " of interest" designation. These practices--specifically the absolute lack of triage--appear to have been unique to New York. See id. at 47, 56.[12]

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

After INS Headquarters learned of the separate New York List, small groups of senior officials from the DAG's Office, the FBI, and the INS convened on at least two occasions in October and November 2001 to suggest how to deal with the two separate lists of detainees. In discussing how to address the New York List, " officials at the INS, FBI, and [DOJ] raised concerns about, among other things, whether the aliens [on the New York List] had any nexus to terrorism." Id. at 53. Nonetheless, this list was merged with the INS List due to the concern that absent further investigation, " the FBI could unwittingly permit a dangerous individual to leave the United States." Id. The decision to merge the lists ensured that some of the individuals on the New York List would remain detained in the challenged conditions of confinement as if there were some suspicion that those individuals were tied to terrorism, even though no such suspicion existed.

V. The Issues on Appeal

In a January 15, 2013 Memorandum and Order, the district court granted in part and denied in part Defendants' motions to dismiss the Complaint. The district court dismissed all claims against the DOJ Defendants. As to the MDC Defendants, the district court denied their motions to dismiss Plaintiffs' substantive due process conditions of confinement claim (Claim 1); equal protection conditions of confinement claim (Claim 2); free exercise claim (Claim 3); unreasonable strip search claim (Claim 6); and conspiracy claim under 42 U.S.C. § 1985(3) (Claim 7). See Turkmen III, 915 F.Supp.2d at 324. The MDC Defendants appealed, and Plaintiffs cross-appealed the dismissal of the claims against the DOJ Defendants based on a judgment that was entered pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.[13]

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DISCUSSION[14]

I. Pleading Standard

To satisfy Iqbal 's plausibility standard, Plaintiffs must " plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 556 U.S. at 678. Although plausibility is not a " probability requirement," Plaintiffs must allege facts that permit " more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks omitted). Factual allegations that are " merely consistent with" unlawful conduct do not create a reasonable inference of liability. Id.

Moreover, " [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. Well-pleaded factual allegations, in contrast, should be presumed true, and we must determine " whether they plausibly give rise to an entitlement to relief." Id. at 679. Ultimately, every plausibility determination is a " context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

With the exception of the Section 1985 conspiracy claim, all of Plaintiffs' claims allege constitutional violations based on injuries first recognized by the Supreme Court in Bivens, 403 U.S. at 388. During the course of this litigation, the Supreme Court made it clear in Iqbal that a federal tortfeasor's Bivens liability cannot be premised on vicarious liability. 556 U.S. at 676. Thus, Plaintiffs must plausibly plead that each Defendant, " through the official's own individual actions," violated Plaintiffs' constitutional rights. Id. In other words, Bivens relief is available only against federal officials who are personally liable for the alleged constitutional tort. Id. at 676-77. Iqbal precludes relying on a supervisor's mere knowledge of a subordinate's mental state ( i.e., discriminatory or punitive intent) to infer that the supervisor shared that intent. Id. at 677. Knowing that a subordinate engaged in a rogue discriminatory or punitive act is not enough. But that is not to say that where the supervisor condones or ratifies a subordinate's discriminatory or punitive actions the supervisor is free of Bivens 's reach. See id. at 683.

II. Availability of a Bivens Remedy for Plaintiffs' Claims

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

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In Bivens, 403 U.S. at 388, the Supreme Court " recognized for the first time an implied private action for damages against federal officers alleged to have violated a citizen's constitutional rights." Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001). " The purpose of Bivens is to deter individual federal officers from committing constitutional violations." Id. at 70. Because a Bivens claim has judicial parentage, " the Supreme Court has warned that the Bivens remedy is an extraordinary thing that should rarely if ever be applied in new contexts." Arar v. Ashcroft, 585 F.3d 559, 571 (2d Cir. 2009) (en banc) (internal quotation marks omitted). Thus, a Bivens remedy is not available for all who allege injury from a federal officer's violation of their constitutional rights.

In Arar, we outlined a two-step process for determining whether a Bivens remedy is available. First, the court must determine whether the underlying claims extend Bivens into a " new context." Id. at 572. If, and only if, the answer to this first step is yes, the court must then consider (a) " whether there is an alternative remedial scheme available to the plaintiff," and, even if there is not, (b) " whether special factors counsel hesitation in creating a Bivens remedy." Id. (internal quotation marks and brackets omitted). As Arar noted, case law provides limited guidance regarding how to determine whether a claim presents a new context for Bivens purposes. Thus, " [w]e construe[d] the word 'context' as it is commonly used in law: to reflect a potentially recurring scenario that has similar legal and factual components." Id.

Determining the " context" of a claim can be tricky. The MDC Defendants contend that the context of Plaintiffs' claims is the nation's " response to an unprecedented terrorist attack." Sherman Br. 45. The DOJ Defendants made a similar argument before the district court in an earlier round of this litigation. See Turkmen I, 2006 WL 1662663, at *30. The MDC Defendants, and the dissent on behalf of the DOJ Defendants, contend that Arar supports this view. But if that were the case, then why did Arar take pains to note that the " context" of Arar's claims was not the nation's continuing response to terrorism, but the acts of federal officials in carrying out Arar's extraordinary rendition? 585 F.3d at 572. We looked to both the rights injured and the mechanism of the injury to determine the context of Arar's claims. In rejecting the availability of a Bivens remedy, we focused on the mechanism of his injury: extraordinary rendition--" a distinct phenomenon in international law" --and determined this presented a new context for Bivens- based claims. Id. Only upon concluding that extraordinary rendition presented a new context did we examine the policy concerns and competing remedial measures available to Arar. In our view, setting the context of the Bivens claims here as the national response in the wake of 9/11 conflates the two-step process dictated by this Court in Arar. The reasons why Plaintiffs were held at the MDC as if they were suspected of terrorism do not present the " context" of their confinement--just as the reason for Arar's extraordinary rendition did not present the context of his claim. Without doubt, 9/11 presented unrivaled challenges and severe exigencies--but that does not change the " context" of Plaintiffs' claims. " [M]ost of the rights that the Plaintiff[s] contend[] were violated do not vary with surrounding circumstances, such as the right not to be subjected to needlessly harsh conditions of confinement, the right to be free from the use of excessive force, and the right not to be subjected to ethnic or religious discrimination. The strength of our system of

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constitutional rights derives from the steadfast protection of those rights in both normal and unusual times." Iqbal v. Hasty ( Hasty ), 490 F.3d 143, 159 (2d Cir. 2007), rev'd on other grounds sub nom. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868.

Thus, we think it plain that the MDC Plaintiffs' conditions of confinement claims are set in the following context: federal detainee Plaintiffs, housed in a federal facility, allege that individual federal officers subjected them to punitive conditions. This context takes account of both the rights injured (here, substantive due process and equal protection rights)[15] and the mechanism of injury (punitive conditions without sufficient cause). The claim--that individual officers violated detainees' constitutional rights by subjecting them to harsh treatment with impermissible intent or without sufficient cause--stands firmly within a familiar Bivens context. Both the Supreme Court and this Circuit have recognized a Bivens remedy for constitutional challenges to conditions of confinement. In Carlson v. Green, 446 U.S. 14, 17-20, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980), the Supreme Court recognized an implied remedy for the plaintiff's claim alleging an Eighth Amendment violation for prisoner mistreatment. Furthermore, in Malesko, in refusing to extend a Bivens remedy to claims against private corporations housing federal detainees, the Supreme Court observed in dicta that, while no claim was available against the private corporation, a federal prisoner would have a remedy against federal officials for constitutional claims. 534 U.S. at 72. " If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may bring a Bivens claim against the offending individual officer, subject to the defense of qualified immunity." Id. The Court went on to recognize that the " prisoner may not bring a Bivens claim against the officer's employer, the United States, or the BOP." Id. The MDC Plaintiffs' claims here plainly follow Malesko 's guidance: the claims are raised against the individual officers, both at the DOJ and the MDC, who were responsible for subjecting the Plaintiffs to punitive conditions of confinement.

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

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would constitute an unwarranted extension of the Bivens doctrine." Arar, 585 F.3d at 597 (Sack, J., dissenting) (discussing Hasty, 490 F.3d at 177-78).

Our sister circuits have also permitted Bivens claims for unconstitutional conditions of confinement. In Cale v. Johnson, 861 F.2d 943, 947 (6th Cir. 1988), abrogated on other grounds by Thaddeus--X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc), the Sixth Circuit held that " federal courts have the jurisdictional authority to entertain a Bivens action brought by a federal prisoner, alleging violations of his right to substantive due process." The Third Circuit has also permitted a federal inmate to bring a civil rights action against prison officials. See Bistrian v. Levi, 696 F.3d 352, 372-75 (3d Cir. 2012) (assuming availability of a Bivens remedy for plaintiff's Fifth Amendment substantive due process and other constitutional claims challenging his conditions of confinement).

Notwithstanding the persuasive precedent suggesting the availability of a Bivens remedy for the MDC Plaintiffs' conditions of confinement claims, the MDC Defendants, and our dissenting colleague, argue that the MDC Plaintiffs' claims present a new Bivens context because the Plaintiffs are illegal aliens. But because the MDC Plaintiffs' right to be free from punitive conditions of confinement is coextensive with that of a citizen, their unlawful presence in the United States at the time of the challenged confinement does not place their standard mistreatment claim into a new context. Indeed, the Fifth Circuit has recognized a Bivens claim raised by a Mexican national for violations of her Fourth and Fifth Amendment rights to be free from false imprisonment and the use of excessive force by law enforcement personnel. See Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir. 2006). The Ninth Circuit has also recognized a Bivens claim for due process violations that occurred during an illegal alien plaintiff's detention. S ee Papa v. United States, 281 F.3d 1004, 1010-11 (9th Cir. 2002).[16] Thus, we conclude that a Bivens remedy is available for the Plaintiffs' substantive due process and equal protection conditions of confinement claims.

Our understanding of Bivens and this Court's decision in Arar do not however suggest the availability of a Bivens remedy for the Plaintiffs' free exercise claim. That claim--that Defendants deliberately interfered with Plaintiffs' religious practices by: (1) denying them timely access to copies of the Koran; (2) denying them Halal food; and (3) failing to stop MDC staff from interfering with Plaintiffs' prayers--does not fall within a familiar Bivens context. Here, it is the right injured--Plaintiffs' free exercise right--and not the mechanism of injury that places Plaintiffs' claims in a new Bivens context. Indeed, the Supreme Court has " not found an implied damages remedy under the Free Exercise Clause" and has " declined to extend Bivens to a claim sounding in the First Amendment." Iqbal, 556 U.S. at 675 (citing Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983)). Accordingly, we agree with the MDC Defendants that Plaintiffs' free exercise claim should have been dismissed.

But the MDC Plaintiffs' claim that they were subjected to unlawful strip searches falls within an established Bivens

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context: federal detainee plaintiffs, housed in a federal facility, allege that individual federal officers subjected them to unreasonable searches in violation of the Fourth Amendment. The MDC Defendants fail to persuasively explain why recognizing the MDC Plaintiffs' unlawful strip search claim would extend Bivens to a new context. Indeed, the right violated certainly falls within a recognized Bivens context: the Fourth Amendment is at the core of the Bivens jurisprudence, as Bivens itself concerned a Fourth Amendment claim. In Bivens, the plaintiff brought a Fourth Amendment claim for the defendants' use of unreasonable force without probable cause, resulting in the plaintiff's unlawful arrest. 403 U.S. at 389-90; see also Groh v. Ramirez, 540 U.S. 551, 555, 124 S.Ct. 1284, 157 L.Ed.2d 1068 (2004) (recognizing the availability of a Bivens remedy for a Fourth Amendment claim of an unreasonable search, as a result of a facially invalid warrant). This Circuit has also permitted Bivens relief for Fourth Amendment claims involving unreasonable searches. See, e.g., Castro v. United States, 34 F.3d 106, 107 (2d Cir. 1994). And the mechanism of the violation--here, an unreasonable search performed by a prison official--has also been recognized by this Circuit. Indeed, in Arar, we stated that " [i]n the small number of contexts in which courts have implied a Bivens remedy, it has often been easy to identify both the line between constitutional and unconstitutional conduct, and the alternative course which officers should have pursued. . . . [T]he immigration officer who subjected an alien to multiple strip searches without cause should have left the alien in his clothes." 585 F.3d at 580; see also Hasty, 490 F.3d at 170-73 (assuming the existence of a Bivens remedy to challenge strip searches under the Fourth Amendment).

Accordingly, we conclude that a Bivens remedy is available for Plaintiffs' conditions of confinement claims, under both the Due Process and Equal Protection Clauses of the Fifth Amendment, and Fourth Amendment unreasonable and punitive strip searches claim.[17] However, Plaintiffs' free exercise claim would require extending Bivens to a new context, a move we decline to make absent guidance from the Supreme Court.

III. Claim 1: Substantive Due Process Conditions of Confinement

The MDC Plaintiffs allege that the harsh conditions of confinement in the MDC violated their Fifth Amendment substantive due process rights and that all Defendants are liable for this harm.[18] Plaintiffs present distinct theories of liability as to the DOJ and MDC Defendants.

A. Applicable Legal Standard

The Fifth Amendment's Due Process Clause forbids subjecting pretrial detainees to punitive restrictions or conditions. See Bell v. Wolfish ( Wolfish ), 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 & n.16 (1979).[19] Plaintiffs must plausibly

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plead that Defendants, (1) with punitive intent, (2) personally engaged in conduct that caused the challenged conditions of confinement. See id. at 538; see also Iqbal, 556 U.S. at 676-77. Absent " an expressed intent to punish," Wolfish, 441 U.S. at 538, we may only infer that Defendants acted with punitive intent if the challenged conditions were " not reasonably related to a legitimate goal--if [they were] arbitrary or purposeless," id. at 539.

B. The DOJ Defendants

While the DOJ Defendants do not raise a no- Bivens- claim defense, they do forcefully contest liability here with powerful post- Iqbal assertions that " the former Attorney General and FBI Director did not themselves require or specify any of the particular conditions set forth in the complaint. And they cannot be held liable on what amounts to a theory of respondeat superior for the actions of others who may have imposed those conditions." Ashcroft & Mueller Br. 10. They contend that because the former Attorney General's initial detention order was constitutional, having been approved by the Supreme Court in Iqbal, the DOJ Defendants were " entitled to presume that the facially constitutional policy would in turn be implemented lawfully . . . ." Id. at 9. We agree . . . to a point.

The MDC Plaintiffs concede that the DOJ Defendants did not create the particular conditions in question. See Turkmen III, 915 F.Supp.2d at 326 n.4; see also OIG Report at 19, 112-13 (reporting that, at least initially, BOP officials determined the conditions under which detainees would be held, without direction from the FBI or elsewhere). The MDC Plaintiffs similarly fail to plead that Ashcroft's initial arrest and detention mandate required subordinates to apply excessively restrictive conditions to civil detainees against whom the government lacked individualized suspicion of terrorism. Given the mandate's facial validity, the DOJ Defendants had a right to presume that ...


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