Nos. 15-1359, 15-1358, 15-1363

IN THE

Supreme Court of the United States

JOHN D. ASHCROFT, former U.S. Attorney General, andROBERT MUELLER, former Director of the FBI,

Petitioners,v.

IBRAHIM TURKMEN, et al.,Respondents.

(Caption continued on inside cover)

On Petitions for Writs of Certiorari to theU.S. Court of Appeals for the Second Circuit

BRIEF OF FORMER U.S. ATTORNEYS GENERALWILLIAM P. BARR, ALBERTO R. GONZALES,

EDWIN MEESE III, MICHAEL B. MUKASEY, ANDDICK THORNBURGH; FORMER FBI DIRECTORS

WILLIAM S. SESSIONS AND WILLIAM H. WEBSTER;AND WASHINGTON LEGAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Richard A. Samp (Counsel of Record)Mark S. ChenowethWashington Legal Foundation2009 Massachusetts Ave., NWWashington, DC 20036202-588-0302rsamp@wlf.org

Date: June 8, 2016

No. 15-1358

JAMES W. ZIGLAR,Petitioner,

v.

IBRAHIM TURKMEN, et al.,Respondents.

No. 15-1363

DENNIS HASTY and JAMES SHERMAN,Petitioners,

v.

IBRAHIM TURKMEN, et al.,Respondents.

QUESTIONS PRESENTED

1. Whether the judicially inferred damagesremedy under Bivens v. Six Unknown Named Agents ofFederal Bureau of Narcotics, 403 U.S. 388 (1971),should be extended to the novel context of this case,which seeks to hold the former Attorney General,former Director of the Federal Bureau of Investigation(FBI), and other senior federal government officialspersonally liable for policy decisions made aboutnational security and immigration in the aftermath ofthe September 11, 2001 terrorist attacks.

2. Whether those senior officials are entitled toqualified immunity for their alleged role in thetreatment of Respondents, because it was not clearlyestablished that aliens legitimately arrested during theSeptember 11 investigation could not be held inrestrictive conditions until the FBI confirmed that theyhad no connections with terrorism.

3. Whether Respondents’ allegations that thosesenior officials personally condoned the implementationof facially constitutional policies because of aninvidious animus against Arabs and Muslims areplausible, as required by Ashcroft v. Iqbal, 556 U.S. 662(2009), in light of the obvious alternative explanations–that the actions of the senior Justice Departmentofficials were motivated by a concern that, absent fullerinvestigation, the government would unwittinglypermit a dangerous individual to leave the UnitedStates, and that the actions of the heads of theMetropolitan Detention Center were motivated by adesire to comply with the FBI’s terrorism designations.

iii

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . v

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 9

REASONS FOR GRANTING THE PETITION . . . 11

I. REVIEW IS WARRANTED BECAUSETHE DECISION BELOW THREATENSTHE ABILITY OF FEDERALOFFICIALS TO AVOID THE BURDENSOF LITIGATION IMPOSED BYINSUBSTANTIAL CLAIMS . . . . . . . . . . . . 11

A. The Qualified Immunity DoctrineWas Crafted to Reduce the Burdenon Government Officials ofDefending Against DamagesClaims . . . . . . . . . . . . . . . . . . . . . . . . 13

B. Under the Second Circuit’s Ruling,Virtually Every Alleged ViolationWill Be Deemed “ClearlyEstablished” . . . . . . . . . . . . . . . . . . . . 15

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Page

II. THE DECISION BELOW CONFLICTSWITH THE PLEADING STANDARDSARTICULATED BY IQBAL AND WITHO T H E R C I R C U I T S ’ U N D E R -STANDINGS OF IQBAL . . . . . . . . . . . . . . . 18

III. THE SECOND CIRCUIT’S DECISIONTO RECOGNIZE A JUDICIALLYINFERRED DAMAGES REMEDY FORRESPONDENTS’ CONSTITUTIONALC L A I M S C O N F L I C T S W I T HDECISIONS OF THIS COURT . . . . . . . . . . 24

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

v

TABLE OF AUTHORITIESPage(s)

Cases:

Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . 9, 14, 17Ashcroft v. Al-Kidd, 563 U.S. 731 (2011) . . . . . . . . . . . . . . . . . . . . 13, 16Ashcroft v. Iqbal, 556 U.S. 662 (2009) . . . . . . . . . . . . . . . . . . . passimBell v. Wolfish, 441 U.S. 520 (1979) . . . . . . . . . . . . . . . . . . . . 15, 17Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) . . . . . . . . . . . . . . . . . . . . 18, 19Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) . . passimBush v. Lucas, 462 U.S. 367 (1983) . . . . . . . . . . . . . . . . . . . . . . . 25Conley v. Gibson, 355 U.S. 41 (1957) . . . . . . . . . . . . . . . . . . . . . . . . 18Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 24Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003) . . . . . . . . . . . . . . 13Guirguis v. Movers Specialty Services, Inc., 346 Fed. Appx. 774 (3d Cir. 2009) . . . . . . . . . . . . 24Haig v. Agee, 453 U.S. 280 (1981) . . . . . . . . . . . . . . . . . . . . . . . 25Halperin v. Kissinger, 606 F.2d 1192 (D.C. Cir. 1979) . . . . . . . . . . . . . . 12Harlow v. Fitzgerald, 457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . 11, 12, 14Int’l Action Ctr. v. United States, 365 F.3d 20 (D.C. Cir. 2004) . . . . . . . . . . . . . . . . 17

vi

Page(s)Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012) . . . . . . . . . . . . . 13, 17Mitchell v. Forsyth, 472 U.S. 511 (1985) . . . . . . . . . . . . . . . 9, 12, 13, 14Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) . . . . . . . . . . . . . . . . 23Mullenix v. Luna, 136 S. Ct. 305 (2015) . . . . . . . . . . . . . . . . . . . . . . 16Nixon v. Fitzgerald, 457 U.S. 731 (1982) . . . . . . . . . . . . . . . . . . . . . . . 12Pearson v. Callahan, 129 S. Ct. 808 (2009) . . . . . . . . . . . . . . . . . . . . . . 14Saucier v. Katz, 533 U.S. 194 (2001) . . . . . . . . . . . . . . . . . . . . . . . 14Wilkie v. Robbins, 551 U.S. 537 (2007) . . . . . . . . . . . . . . . . . . . . . . . 25

Statutes, Rules, and Constitutional Provisions:

U.S. Const., amend i . . . . . . . . . . . . . . . . . . . . . . . . 23

U.S. Const., amend v . . . . . . . . . . . . . . . . . . . . 3, 6, 19

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Fed.R.Civ.P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

Fed.R.Civ.P. 8(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . 18

INTERESTS OF AMICI CURIAE

The amici curiae are five former AttorneysGeneral, two former Directors of the FBI, and a public-interest law firm.1 Amici believe that the qualifiedimmunity doctrine provides important legal protectionsto federal government officials; it allows officials toperform their duties without the distraction of havingto defend damages claims filed against them in theirpersonal capacity. Amici are concerned that thedecision below restricts that doctrine to such an extentthat government officials will be unable to win pre-discovery dismissal of insubstantial constitutionalclaims. Amici are also concerned that the decisionbelow inappropriately expands judicially inferreddamages remedies against federal officials for allegedviolations of constitutional rights, and it adopts astandard for what constitutes a “plausible” claim forrelief that is far broader than the one established bythis Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009).

The Honorable William P. Barr served asAttorney General of the United States from 1991 to1993. He also served as Assistant Attorney General forthe Office of Legal Counsel from 1989 to 1990 andDeputy Attorney General from 1990 to 1991.

1 Pursuant to Supreme Court Rule 37.6, amici state thatno counsel for a party authored this brief in whole or in part; andthat no person or entity, other than amici and their counsel, madea monetary contribution intended to fund the preparation andsubmission of this brief. More than ten days prior to the due date,counsel for amici provided counsel for Respondents with notice ofintent to file. All parties have consented to the filing of this brief;letters of consent have been lodged with the clerk.

2

The Honorable Alberto R. Gonzales served asAttorney General of the United States from 2005 to2007. He also served as White House Counsel toPresident George W. Bush from 2001 to 2005 and as aJustice on the Texas Supreme Court from 1999 to 2001.

The Honorable Edwin Meese III served asAttorney General of the United States from 1985 to1988. He also served as Counselor to President RonaldReagan from 1981 to 1985.

The Honorable Michael B. Mukasey served asAttorney General of the United States from 2007 to2009. From 1988 to 2006, he served as a judge on theU.S. District Court for the Southern District of NewYork, serving as Chief Judge from 2000 to 2006.

The Honorable William S. Sessions served asDirector of the FBI from 1987 to 1993. He also servedas a judge on the U.S. District Court for the WesternDistrict of Texas from 1974 to 1987, serving as ChiefJudge from 1980 to 1987; and was the United StatesAttorney for the Western District of Texas from 1971 to1974.

The Honorable Dick Thornburgh served asAttorney General of the United States from 1988 to1991. He also served as Assistant Attorney General forthe Criminal Division from 1975 to 1977 and Governorof Pennsylvania from 1979 to 1987.

The Honorable William H. Webster served asDirector of the FBI from 1978 to 1987. He also servedas Director of the CIA from 1987 to 1991. He served asa judge on the U.S. District Court for the Eastern

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District of Missouri from 1970 to 1973, and on the U. S.Court of Appeals for the Eighth Circuit from 1973 to1978.

Washington Legal Foundation (WLF) is a non-profit public-interest law firm and policy center. Itregularly appears in this and other federal courts tosupport appropriate enforcement of pleading standardsin civil litigation.

STATEMENT OF THE CASE

Petitioners in Nos. 15-1358 and 15-1359 arehigh-ranking federal officials who played a prominentrole in directing the Government’s investigation intothe events of September 11, 2001, when al Qaeda’smurderous and unprovoked attack on Americancivilians resulted in nearly 3,000 deaths. Respondentsare six aliens who were arrested for immigrationviolations and were detained in connection with thatinvestigation, under highly restrictive conditions at theMetropolitan Detention Center (MDC) in Brooklyn.2 They contend that the conditions of their detentionviolated their Fifth Amendment rights to substantivedue process and equal protection of the laws.

Respondents allege that U.S. Attorney General

2 In using the term “Respondents,” amici refer only tothose six men. Two other plaintiffs/respondents—IbrahimTurkmen and Akhil Sachdeva—were not detained at the MDC. The Second Circuit dismissed their claims, and they have notpetitioned the Court for review of that dismissal. Petitioners inNo. 15-1363 are the former Warden and Associate Warden at theMDC.

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John Ashcroft and FBI Director Robert Mueller(Petitioners in No. 15-1359) actively supervised the9/11 investigation. They allege that Ashcroft andMueller developed a policy whereby the federalgovernment would arrest any Arab or Muslim manwho, while being questioned in connection with theinvestigation, was determined to be in the country inviolation of immigration laws. Pet. App. 245a. Theyfurther allege that Petitioners established a “hold-until-cleared” policy, whereby aliens being detainedbecause they were deemed “of interest” or “of highinterest” to the investigation were not to be releaseduntil the FBI affirmatively cleared them of terroristties. Id. at 245a-246a. Ultimately, the Immigrationand Naturalization Service (INS) placed 762 detaineeson its Custody List (the “INS List”); those individualswere thereby made subject to the hold-until-clearedpolicy. Id. at 9a.

Bureau of Prisons (BOP) policy required thatthose classified as “of interest” or “of high interest”were to be confined “in the most restrictive and secureconditions permitted by BOP policy.” Id. at 49a. Atthe MDC, that meant detention in the facility’sAdministrative Maximum Special Housing Unit(“ADMAX SHU”), a unit in which the conditions ofconfinement were quite harsh. Respondents do notcontend however, that the confinement policies adoptedfor the ADMAX SHU violated either BOP policy or theU.S. Constitution. Respondents each were confined inADMAX SHU for several months before being clearedof involvement in terrorism and deported. Respondents were among 84 individuals housed inADMAX SHU during 2001-02. The great majority ofindividuals detained due to their “of interest” or “of

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high interest” status were detained at non-federalfacilities (such as the Passaic County Jail), where theirconditions of confinement were far less harsh.

The Fourth Amended Complaint alleges thatPetitioners violated Respondents’ substantive dueprocess rights by subjecting them to punitiveconditions of confinement that allegedly served no validgovernmental purpose. Although acknowledging thatthose conditions might have served a valid purpose ifPetitioners had had reason to believe that thedetainees were terrorists, Respondents allege that allPetitioners were aware that, for many of the aliensdesignated “of interest” or “of high interest,” thegovernment lacked any evidence plausibly connectingthem to terrorism. Petitioners are alleged to haveviolated Respondents’ equal protection rights bysingling them out for harsh treatment based on theirrace, religion, and/or ethnic or national origin. Id. at335a.

The district court granted motions to dismissfiled by Ashcroft, Mueller, and INS CommissionerJames Ziglar, the Petitioner in No. 15-1358 (the “DOJPetitioners”). The court concluded that the complaintdid not plausibly allege punitive intent, Pet. App. 189a,nor did it plausibly allege that they “directed thedetention of the plaintiffs in harsh conditions ofconfinement due to their race, religion, or nationalorigin.” Id. at 200a. The court largely denied motionsto dismiss filed by the MDC-based defendants. Id. at190a-194a, 200a-202a, 219a-220a; 224a-225a. Theyfiled an interlocutory appeal from the denial of theirassertion of qualified immunity. Respondents appealeddismissal of claims against the DOJ Petitioners.

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A divided Second Circuit reinstated thesubstantive due process and equal protection claimsagainst the DOJ Petitioners and largely affirmeddenial of the MDC Petitioners’ motion to dismiss. Pet.App. 1a-156a. The appeals court initially concludedthat a Bivens remedy was available for each ofRespondents’ Fifth Amendment claims. Id. at 21a-29a. It held that Respondents’ status as unauthorized aliensand the national security context of their detention wasirrelevant to the Bivens analysis.

The appeals court also rejected Petitioners’assertion of qualified immunity. Id. at 46a-47a, 55a-57a, 71a-72a, 80a-81a. The court concluded thatfederal case law as of 2001 clearly established thatPetitioners’ alleged conduct violated Respondents’constitutional rights.

The appeals court also concluded that thecomplaint adequately stated claims against allPetitioners. The Court recognized that the DOJPetitioners did not create the allegedly punitiveconfinement conditions in question. Id. at 30a. Itnonetheless held that they could be charged withresponsibility for those conditions, because thecomplaint alleged that: (1) they were aware that theNew York office of the FBI had designated manyArab/Muslim detainees as “of interest” or “of highinterest” despite lacking any credible evidence of theirties to terrorism; and (2) they approved merging theNew York FBI’s list of detainees (the “New York List”)with the INS List, thereby ensuring application of thehold-until-cleared policy to Arab/Muslim detaineeswhom they knew could not plausibly be tied toterrorism. Pet. App. 30a-46a, 59a-65a.

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The MDC Petitioners similarly asserted that thecomplaint failed to state a claim against them forconstitutional violations, arguing that the mostplausible inference to be drawn from the complaint’sallegations is that they placed the six Respondents inthe ADMAX SHU not for punitive or discriminatorypurposes (as alleged by Respondents) but because BOPpolicy required them to do so. The Second Circuitrejected that assertion, noting that the complaintalleged that the MDC Petitioners eventually learnedthat the FBI was designating Arab/Muslim men as “ofinterest” and “of high interest” without any evidence ofties to terrorism. Id. at 48a-52a. The court concludedthat the complaint adequately alleged claims againstthe MDC Petitioners by alleging that they continued toabide by the FBI’s detainee classifications even afterlearning that those classifications lacked evidentiarysupport. Ibid.

Judge Raggi dissented. Pet. App. 83a-156a. Sheasserted that the courts should not recognize theclaimed Bivens remedies against federal officials, whenthe claimed remedies challenge official “nationalsecurity policy pertaining to the detention of illegalaliens in the aftermath of terrorist attacks by aliensoperating within this country.” Id. at 84a. Underthose circumstances, she concluded, “Congress, not thejudiciary, is the appropriate branch to decide whetherthe detained aliens should be allowed to sue executivepolicymakers in their individual capacities for moneydamages.” Ibid.

She also concluded that Petitioners were entitledto qualified immunity. Id. at 84a-85a. She explained:

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The law did not [in 2001-02] clearly alertfederal authorities responding to thesechallenges that they could not holdlawfully arrested illegal aliens—identifiedin the course of the 9/11 investigation andamong the group targeted by alQaeda—in restrictive (as opposed togeneral) confinement pending FBI-CIAclearance of any ties to terrorism unlessthere was prior individualized suspicionof a terrorist connection. Indeed, I am notsure that conclusion is clearly establishedeven today.

Id. at 85a.

Judge Raggi also concluded that the complaintfailed to adequately allege discriminatory treatment,stating that the complaint failed to allege facts fromwhich one could reasonably infer that Petitioners acted“because of, not merely in spite of, the action’s adverseeffects” on Arabs/Muslims. Id. at 130a (quoting Iqbal,556 U.S. at 681); see also id. at 142a-144a. Sheasserted, for example, that the complaint provides nofactual basis for inferring that anyone decided to mergethe New York List with the INS List “because it wouldkeep [Respondents] in restrictive confinement.” Ibid. Nor could the actions of the MDC Petitioners “plausiblyimply discriminatory intent because they are obviouslyand most likely explained by reliance on the FBI’sdesignations of each [Respondent] as a person ‘of highinterest,’ or ‘of interest,’ to the ongoing terroristinvestigation.” Id. at 151a.

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An equally divided Second Circuit deniedrehearing en banc. Pet. App. 227a-240a. Judge Jacobsissued an opinion dissenting from the denial, joined byJudges Cabranes, Raggi, Hall, Livingston, and Droney. Id. at 231a-240a.

SUMMARY OF ARGUMENT

The petitions raise issues of exceptionalimportance. Amici urge the Court to grant review ofall three Questions Presented. We write separately tofocus particular emphasis on the qualified immunityquestion. Qualified immunity not only providesgovernment officials with a defense to liability; it alsois “an entitlement not to stand trial or face the otherburdens of litigation.” Mitchell v. Forsyth, 472 U.S.511, 526 (1985) (emphasis added). The Court has madeclear that the “driving force” behind creation of thequalified immunity doctrine was a desire to ensurethat “‘insubstantial claims’ [will] be resolved prior todiscovery.” Anderson v. Creighton, 483 U.S. 635, 640n.2 (1987). Yet, the decision below calls into questionthe ability of high-level Executive Branch officials towin dismissal, on qualified immunity grounds, of evenfrivolous Bivens litigation filed by anyone claiming tobe aggrieved by their official conduct.

In the absence of dismissal, those officials facethe prospect of discovery proceedings that are highlylikely to distract them from their other responsibilities. As former senior Executive Branch officials, theindividual amici curiae are concerned by the disruptiveeffects of such discovery, and they are very concernedthat such disruptions are likely to impair the ability ofhigh-level officials to carry out their missions

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effectively. Review is warranted to determine whethersuch disruptions are required under the terms of thequalified immunity doctrine and the pleadingstandards established by the Federal Rules of CivilProcedure, particularly when (as here) the challengedactions involve sensitive national security issues.

Respondents raise constitutional claims that arelargely the same as those at issue in Iqbal and thatarise from precisely the same underlying facts: thedetention of Arab/Muslim unauthorized aliens at theMDC under harsh conditions in 2001-02. Iqbaldetermined that the complaint at issue there did notadequately state a constitutional claim againstAshcroft and Mueller for their alleged role in thedetentions. The Second Circuit decision, by reachingthe opposite conclusion in connection with a complaintthat added little in the way of new factual allegations,is in considerable tension with Iqbal. The sameconsiderations that led the Court to review (andultimately overturn) the Second Circuit’s assessmentof the adequacy of the pleadings in Iqbal shouldpersuade the Court to grant review here as well. Inparticular, Respondents’ complaint includes no factualallegations from which one can reasonably infer thatAshcroft, Mueller, and Ziglar played any role indetermining the conditions of Respondents’confinement.

Review is also warranted to determine whetherthe courts should recognize a judicially inferreddamages remedy against senior Executive Branchofficials for alleged infringement of Respondents’constitutional rights in the course of carrying out theirnational security responsibilities. As Petitioners note,

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the appeals courts are sharply divided on the issue,with the Fourth, Seventh, Ninth, and D.C. Circuitsissuing decisions that conflict with the decision below. Review is warranted to resolve that conflict.

Amici also write separately to note that theSecond Circuit’s unprecedented recognition of Bivensactions to challenge Executive Branch national securitypolicy conflicts with decisions of this Court. The Courthas cautioned against recognition of new Bivensremedies when, as here, “special factors” counselhesitation. Those special factors include the nationalsecurity and immigration-law aspects of this case(areas in which courts traditionally defer to thejudgments of the elected branches), the availability ofalternative remedies (e.g., habeas corpus proceedings),and the failure of Congress to provide an expressdamages remedy despite its considerable focus ondetention-related issues arising in the course of the9/11 investigation.

REASONS FOR GRANTING THE PETITION

I. REVIEW IS WARRANTED BECAUSE THEDECISION BELOW THREATENS THEABILITY OF FEDERAL OFFICIALS TOAVOID THE BURDENS OF LITIGATIONIMPOSED BY INSUBSTANTIAL CLAIMS

The Court has long recognized that significantburdens are imposed on government officials whenthey are required to defend damages claims filedagainst them in their individual capacities for actionstaken in connection with their employment. As theCourt explained in Harlow:

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Each such suit [against high-levelgovernment officials] almost invariablyresults in these officials and theircolleagues being subjected to extensivediscovery into traditionally protectedareas, such as their deliberationspreparatory to the formulation ofgovernment policy and their intimatethought processes and communications atthe presidential and cabinet levels. Suchdiscover[y] is wide-ranging, time-consuming, and not without considerablecost to the officials involved.

Harlow v. Fitzgerald, 457 U.S. 800, 817 n.29 (quotingHalperin v. Kissinger, 606 F.2d 1192, 1214 (D.C. Cir.1979) (Gesell, J., concurring)).

The burdens can be particularly pronouncedamong officials working on national security matters,where the high level of public passion can result inincreased levels of litigation. As Justice Stevensexplained:

The passions aroused by matters ofnational security and foreign policy andthe high profile of Cabinet officers withfunctions in that area make them “easilyidentifiable [targets] for suits for civildamages.” Nixon v. Fitzgerald, 457 U.S.[731,] 753 [(1982)]. Persons of wisdomand honor will hesitate to answer thePresident’s call to serve in these vitalpositions if they fear that vexatious andpolitically motivated litigation associated

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with their public decisions will squandertheir time and reputation, and sap theirpersonal financial resources when theyleave office. The multitude of lawsuitsfiled against high officials in recent yearsonly confirms the rationality of thisanxiety.

Mitchell, 472 U.S. at 541-42 (Stevens, J., concurring inthe judgment).

Events proved Justice Stevens’s prescience. Lawsuits seeking damages from senior ExecutiveBranch officials for actions they took regardingnational security matters proliferated throughout theadministrations of Presidents Barack Obama, GeorgeW. Bush, and Bill Clinton. See, e.g., Lebron v.Rumsfeld, 670 F.3d 540 (4th Cir. 2012) (suit againstDefense Secretaries Leon Panetta and DonaldRumsfeld alleging mistreatment of military detainee);Ashcroft v. Al-Kidd, 563 U.S. 731 (2011) (suit againstAttorney General alleging improper authorization of material-witness warrants to detain terrorismsuspects); Gonzalez v. Reno, 325 F.2d 1228 (11th Cir.2003) (suit against Attorney General arising fromexecution of an arrest warrant for six-year-old ElianGonzalez).

A. The Qualified Immunity DoctrineWas Crafted to Reduce the Burdenon Government Officials ofDefending Against Damages Claims

In an effort to reduce the burdens imposed bysuch suits, the Court has crafted a qualified immunity

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doctrine designed to provide government officials withnot only a defense to liability but also an “immunityfrom suit.” Mitchell, 472 U.S. at 526. The “drivingforce” behind creation of the doctrine was a desire toensure that “insubstantial claims [will] be resolvedprior to discovery.” Anderson, 483 U.S. at 640 n.2. Seealso Saucier v. Katz, 533 U.S. 194, 200 (2001) (“Wherethe defendant seeks qualified immunity, a ruling onthat issue should be made early in the proceedings sothat the costs and expenses of trial are avoided wherethe defense is dispositive.”).

Qualified immunity shields a government officialfrom liability in an individual capacity so long as theofficial has not violated “clearly established statutoryor constitutional rights of which a reasonable personwould have known.” Harlow, 457 U.S. at 818. Toovercome the defense of qualified immunity theplaintiff must show: (1) the facts, viewed in the lightmost favorable to the plaintiff, demonstrate thedeprivation of a statutory or constitutional right; and(2) the right was clearly established at the time of thedeprivation. Saucier, 533 U.S. at 199. Courts are“permitted to exercise their sound discretion indeciding which of the two prongs of the qualifiedimmunity analysis should be addressed first in light ofthe circumstances in the particular case at hand.” Pearson v. Callahan, 555 U.S. 223, 236 (2009). Amicisubmit that review of the second prong—whether theasserted right was “clearly established”—isparticularly warranted in this case.

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B. Under the Second Circuit’s Ruling,Virtually Every Alleged ViolationW i l l B e D e e m e d “ C l e a r l yEstablished”

The Second Circuit pointed to no pre-2001decision whose holding directly supported itsconclusion: that substantive due process prohibitedfederal officials from confining lawfully arrestedunauthorized aliens in harsh conditions whileinvestigating their possible involvement in terrorism.3 Instead, it merely cited Bell v. Wolfish, 441 U.S. 520(1979), for the more general proposition that “aparticular condition or restriction of pretrial detentionnot reasonably related to a legitimate governmentalobjective is punishment in violation of theconstitutional rights of detainees.” Pet. App. 47a. Butthat assertion begs the question: can the imposition ofrestrictive conditions of confinement on unauthorizedaliens serve a “legitimate governmental objective?” In2001-02, federal officials concluded that imposingharsh conditions could serve such objectives, byassisting in the federal government’s response to anational-security crisis. In the absence of pre-2001case law holding otherwise, Petitioners are entitled togood-faith immunity from damages claims challengingthat conclusion.

3 The Second Circuit did not contest that the harshconditions adopted at the MDC could, in appropriatecircumstances, be imposed on convicted felons. Nor did it contestthat federal immigration officials were entitled to detainRespondents and other unauthorized aliens under generallyauthorized prison conditions.

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The Second Circuit’s contrary conclusion sharplyconflicts with this Court’s qualified immunity case law. The Court has repeatedly explained that “[a] clearlyestablished right is one that is sufficiently clear thatevery reasonable official would have understood thatwhat he is doing violates that right. ... Put simply,qualified immunity protects all but the plainlyincompetent or those who knowingly violate the law.” Mullenix v. Luna, 136 S. Ct. 305 (2015). Perhaps thebest evidence that the substantive due process rightasserted by Respondents was not “clearly established”is the Second Circuit’s 6-6 vote denying rehearing enbanc in this case. That half the judges on the SecondCircuit concluded that Petitioners’ alleged conduct didnot violate the Due Process Clause is convincingevidence that the contrary view was not “clearlyestablished.”

The Second Circuit erred by examining the dueprocess issue at too high a level of generality. ThisCourt has “repeatedly told courts ... not to defineclearly established law at a high level of generality. ...The general proposition, for example, that anunreasonable search and seizure violates the FourthAmendment is of little help in determining whether theviolative nature of particular conduct is clearlyestablished.” Al-Kidd, 563 U.S. at 742. Similarly, thegeneral proposition that the Due Process Clauseprohibits the imposition of punishment on pre-trialdetainees that serves no legitimate governmentobjective is of little help in determining whether it was“clearly established” that the harsh conditions ofconfinement at issue here served no legitimateobjective.

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As the D.C. Circuit has pointed out:

It does no good to allege that policeofficers violated the right to free speech,and then conclude that the right to freespeech has been “clearly established” inthis country since 1791. Instead, courtsmust define the right to a degree thatwould allow officials “reasonably [to]anticipate when their conduct may giverise to liability for damages.”

Int’l Action Ctr. v. United States, 365 F.3d 20, 25 (D.C.Cir. 2004) (Roberts, J.) (quoting Anderson, 483 U.S. at639). Review is warranted to determine whetherfederal officials in 2001, based on then-existing caselaw, could reasonably have anticipated that theirdecision to impose harsh conditions of confinement onunauthorized aliens (as a means of securinginformation about terrorist activity) would give rise toliability for damages.

Review is also warranted to resolve the conflictbetween the decision below and the Fourth Circuit’sgrant of qualified immunity in a case arising in asimilar national-security context. The Fourth Circuitheld that qualified immunity barred a militarydetainee’s damages claim against senior defenseofficials based on allegations that the conditions of hisconfinement unlawfully interfered with the freeexercise of his religion (Islam). Lebron, 670 F.3d at560. The Fourth Circuit held that the context in whicha claim arises is crucial in determining whether theright to relief is “clearly established”—and thuswhether the defendants are entitled to qualified

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immunity. It held that free-exercise rights of the sortclaimed by the plaintiff are not clearly establishedwhen they arise within a national-security context,even though those same rights are clearly establishedin a civilian context. Ibid. In sharp contrast, theSecond Circuit based its “clearly established”determination on case law (Bell v. Wolfish) arisingoutside the context of immigration and nationalsecurity, concluding that the immigration/nationalsecurity context within which this case arose did notalter the qualified-immunity analysis.

II. THE DECISION BELOW CONFLICTSWITH THE PLEADING STANDARDSARTICULATED BY IQBAL AND WITHOTHER CIRCUITS’ UNDERSTANDINGSOF IQBAL

Fed.R.Civ.P. 8(a)(2) requires a complaint toinclude “a short and plain statement of the claimshowing that the pleader is entitled to relief.” Whilethat rule eliminated earlier requirements that aclaimant “set out in detail the facts upon which hebases his claim,” Conley v. Gibson, 355 U.S. 41, 47(1957) (emphasis added), the rule:

[S]till requires a “showing,” rather than ablanket assertion, of entitlement to relief. Without some factual allegation in thecomplaint, it is hard to see how aclaimant could satisfy the requirement ofproviding not only “fair notice” of thenature of the claim, but also “grounds” onwhich the claim rests.

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 n.3(2007).

Twombly held that Rule 8(a)(2) requires acomplaint to include sufficient “factual matter” toprovide “plausible grounds” to infer that the allegationsof the complaint are true. Id. at 556. It held thatrequiring plausibility “reflects the thresholdrequirement of Rule 8(a)(2) that the ‘plain statement’possess enough heft to ‘sho[w] that the pleader isentitled to relief.’” Id. at 557. The Court explainedthat a test requiring plausibility is not so strict as torequire “probability” but nonetheless requires morethan that the allegations are merely possible orconceivable. Id. at 557, 570.

Iqbal applied the Rule 8 pleading standards toclaims substantially identical to those raised byRespondents. The plaintiff in Iqbal (a citizen ofPakistan arrested following 9/11 for violatingimmigration laws) sued Ashcroft, Mueller, and otherfederal officials for the harsh conditions he enduredwhile incarcerated in ADMAX SHU. Reversing theSecond Circuit, this Court determined that Iqbal hadinadequately pleaded that Ashcroft and Muellerviolated his Fifth Amendment rights to substantive dueprocess and equal protection. Iqbal, 556 U.S. at 682-83. The Court concluded that although Iqbal claimedthat they adopted a policy of detaining individuals inADMAX SHU “because of their race, religion, ornational origin,” his factual allegations wereinsufficient to state a plausible discrimination claim. Ibid. The Court rejected his assertion that one couldinfer intentional discrimination from DOJ’s hold-until-cleared policy, stating, “All it plausibly suggests is that

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the Nation’s top law enforcement officers, in theaftermath of a devastating terrorist attack, sought tokeep suspected terrorists in the most secure conditionsavailable until the suspects could be cleared of terroristactivity.” Id. at 683.

Review is warranted to resolve the considerabletension between Iqbal and the decision below. Thesame considerations that led the Court to review (andultimately overturn) the Second Circuit’s assessmentof the adequacy of the pleadings in Iqbal shouldpersuade the Court to grant review here as well.

In concluding that Respondents satisfied theRule 8 pleading standard, the Second Circuit focusedprimarily on a single factual allegation on which Iqbalhad not focused: the decision of DOJ officials to mergethe New York List with the INS List. The appealscourt concluded that the merger decision ensuredprolonged detention for those on the New York Listbecause they would thereafter be subjected to DOJ’shold-until-cleared policy. Pet. App. 37a-42a, 59a-62a. It concluded that one could plausibly inferdiscriminatory intent (as well as an intent to punishwithout any legitimate governmental objective) fromthe DOJ Petitioners’ approval of the merger because they were aware that: (1) the FBI’s New York officehad placed many individuals on the New York Listdespite lacking evidence connecting them to terrorism;and (2) the merger could result in those individuals’being subjected to harsh conditions of confinement fora prolonged period. Ibid.

The merging of the two lists will not bear theweight the Second Circuit assigns to it, even putting

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aside the substantial evidence (catalogued by JudgeRaggi in her dissent) that Ashcroft, Mueller, and Ziglarplayed no role in the merger decision. Even if oneassumes that they were aware that some Arab/Muslimmen would suffer prolonged detention in ADMAX SHUas a result of merging the lists, the Court hasrepeatedly cautioned that intentionally invidiousdiscrimination is not demonstrated by showing that adefendant is aware that members of a specific religiousor ethnic group will be adversely affected by achallenged decision. As the Court explained inconcluding that Iqbal had inadequately allegedintentional discrimination by Ashcroft and Mueller onthe basis of race, religion, or national origin:

Under extant precedent purposefuldiscrimination requires more than intentas volition or intent as awareness ofconsequences. It instead involves adecisionmaker’s undertaking a course ofaction because of, not merely in spite of,[the action’s] adverse effect on anidentifiable group. It follows that, tostate a claim based on a violation of aclearly established right, respondentmust plead sufficient factual matter toshow that petitioners adopted andimplemented the detention policies atissue not for a neutral, investigativereason but for the purpose ofdiscriminating on account of race,religion, or national origin.

Iqbal, 556 U.S. at 676-77 (citations omitted).

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By far the most plausible inference one can drawfrom the decision to merge the lists is that federalofficials sought to ensure a thorough review of allpotential suspects, thereby minimizing the possibilitythat terrorists could slip through the cracks. Petitioners may have been aware, of course, that theirdecision would result in some Arab/Muslimunauthorized aliens enduring prolonged detention. But while Respondents allege that Petitioners knewthat some of those on the New York List were notplausible suspects, there is no allegation that they hadany short-term means of distinguishing suchindividuals from others who really were associatedwith terrorist activity. The only means of doing sowithout risking the release of dangerous individualswas to mandate a thorough review of all those on theNew York List—a review that was facilitated bymerging the two lists. Because this better-safe-than-sorry rationale is a far more plausible explanation ofPetitioners’ conduct than is the Second Circuit’sintentional-discrimination theory, the factualallegations of Respondents’ complaint are insufficientto state a claim for intentional racial, religious, ornational-origin discrimination.4

4 The Second Circuit’s intentional-discrimination inferenceis further undercut by the fact that a significant majority ofArab/Muslim males on the FBI List were incarcerated at thePassaic County Jail or other non-federal facilities and thus werenot subjected to the harsh conditions experienced by thoseassigned to the MDC. Pet. App. 147a-148a. It is not plausible tosuggest that the DOJ Petitioners intended to discriminate againstRespondents because of their race, religion, or national origin whena large percentage of similarly situated Arab/Muslim detaineeswere not subjected to similarly harsh conditions.

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The complaint’s factual allegations with respectto the MDC Petitioners are similarly deficient. Inupholding the discrimination claim against the MDCPetitioners, the Second Circuit pointed to allegationsthat they eventually learned that the FBI wasdesignating Arab/Muslim men as “of interest” and “ofhigh interest” without any evidence that they had tiesto terrorism. But even if they thus became aware thatthe detention policy was having a disparate impact onArab/Muslim men, one cannot plausible infer fromthose allegations that they continued to hold such menin ADMAX SHU because they intended to discriminateagainst Arab/Muslim men. Rather, by far the mostplausible inference is that they did so because theywere required to do so under BOP Policy.5

Review of the Rule 8 issue is also warrantedbecause the Second Circuit’s interpretation of Iqbal isinconsistent with that of other circuits. See, e.g., Mossv. U.S. Secret Service, 572 F.3d 962, 970-72 (9th Cir.2009) (Iqbal required dismissal of First Amendmentdiscrimination claim where plaintiffs’ allegationsdemonstrated only that the defendants were aware of

5 The Second Circuit’s rationale could have seriousnegative impacts on national security. The implication of theappeals court’s decision is that once the MDC Petitioners becameconvinced that there was little credible evidence of terrorist ties forsome of the unauthorized aliens designated as “of interest” or “ofhigh interest” by the FBI, they should have deliberately disobeyedBOP Policy and removed those individuals from the ADMAX SHU. Amici respectfully submit that it is wholly inappropriate forfederal courts to interfere with the Executive Branch chain ofcommand in that manner, interference that could potentiallydisrupt the ability of senior officials to direct subordinates inresponding to national-security threats.

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disparate impact); Guirguis v. Movers SpecialtyServices, Inc., 346 Fed. Appx. 774 (3d Cir. 2009)(dismissal of complaint alleging national-origindiscrimination in employment affirmed on the basis ofIqbal, where plaintiff alleged that defendant fired himbecause of his Egyptian nationality but included nofactual allegations that supported an inference ofintentional discrimination).

III. THE SECOND CIRCUIT’S DECISION TORECOGNIZE A JUDICIALLY INFERREDDAMAGES REMEDY FOR RESPONDENTS’CONSTITUTIONAL CLAIMS CONFLICTSWITH DECISIONS OF THIS COURT

As Petitioners have ably demonstrated, thefederal appeals courts are sharply divided on the issueof whether federal courts, without awaiting expressauthority from Congress, should infer a damagesremedy for Respondents’ constitutional claims. Amiciconcur that the Court should grant review on this issueas well, in order to resolve the conflict.

Amici write separately to note that the SecondCircuit’s unprecedented recognition of a Bivens actionto challenge Executive Branch national security policyalso conflicts with decisions of this Court. The Court’sauthority to recognize a new constitutional tort isanchored in its general jurisdiction to decide all cases“arising under the Constitution, laws, or treaties of theUnited States.” 28 U.S.C. § 1331. However, the Courthas exercised that authority only sparingly. Bivens(decided in 1971) marked the first time that the Courtdid so. It has done so on only two other occasions (mostrecently in 1980), and since then has “consistently

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refused to extend Bivens liability to any new context ornew category of defendants.” Correctional ServicesCorp. v. Malesko, 534 U.S. 61, 68 (2001).

The reluctance to extend Bivens is grounded inseparation-of-powers concerns. Deciding whether toextend Bivens focuses not on “the merits of theparticular remedy sought, but on who should decidewhether such a remedy should be provided.” Bush v.Lucas, 462 U.S. 367, 380 (1983). The answer isgenerally Congress, because “Congress is in a far betterposition than a court to evaluate the impact of a newspecies of litigation against those who act in thepublic’s behalf.” Wilkie v. Robbins, 551 U.S. 537, 562(2007).

The Court’s Bivens case law suggests that it isparticularly appropriate to permit Congress, ratherthan the courts, to decide whether to recognize a rightof action for Respondents’ constitutional claims. Thoseclaims implicate important national security issues. Asthe Court has repeatedly recognized, “Mattersintimately related to foreign policy and nationalsecurity are rarely proper subjects for judicialintervention.” Haig v. Agee, 453 U.S. 280, 292 (1981). Congress may ultimately determine that a damagesremedy would provide an appropriate check againstoverly harsh treatment of unauthorized aliens who areproperly subject to detention and are beinginvestigated for possible connection to terrorism. ButCongress has not done so to date, despite its adoptionof numerous post-9/11 statutes addressing detentionpolicy. Review is warranted to determine whether theSecond Circuit overstepped judicial bounds byrecognizing Respondents’ right to assert their

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constitutional claims.

CONCLUSION

The Court should grant the Petitions.

Respectfully submitted,

Richard A. Samp (Counsel of Record)Mark S. ChenowethWashington Legal Found.2009 Massachusetts Ave, NWWashington, DC 20036202-588-0302rsamp@wlf.org

June 8, 2016