Turkmen v. Hasty

Decision Date17 June 2015
Docket Number13–1002,Docket Nos. 13–981,13–999,13–1003,13–1662.
Citation789 F.3d 218
PartiesIbrahim TURKMEN, Akhil Sachdeva, Ahmer IqbalAbbasi, 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.
CourtU.S. Court of Appeals — Second Circuit

Rachel A. Meeropol, Center for Constitutional Rights, New York, N.Y. (Michael Winger, Sunita Patel, Baher A. Azmy, Center for Constitutional Rights, New York, N.Y.; Nancy L. Kestenbaum, Jennifer L. Robbins, Joanne SumPing, Covington & Burling LLP, New York, N.Y., on the brief), for PlaintiffsAppelleesCross–Appellants.

Hugh D. Sandler, Crowell & Moring LLP, New York, N.Y. (Shari Ross Lahlou, Crowell & Moring LLP, Washington, D.C., on the brief), for DefendantAppellant Dennis Hasty.

Joshua C. Klein (Allan N. Taffet, Kirk L. Brett, Megan E. Uhle, on the brief), Duval & Stachenfeld LLP, New York, N.Y., for DefendantAppellant Michael Zenk.

Jeffrey A. Lamken, (Martin V. Totaro, MoloLamken LLP, Debra L. Roth, Julia H. Perkins, Shaw, Bransford & Roth P.C., Washington, D.C., on the brief), for DefendantAppellant 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 DefendantsCross–Appellees John Ashcroft and Robert Mueller.

William Alden McDaniel, Jr., Ballard Spahr LLP, Baltimore, MD, for DefendantCross–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 PlaintiffsAppellees–Cross–Appellants.

Before: POOLER, RAGGI, and WESLEY, Circuit Judges.


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” aliens1 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.

I. Procedural History3

Plaintiffs initiated this action over thirteen years ago on April 17, Over the following two and one-half years, Plaintiffs amended their complaint three times. In June 2006, following a series of motions to dismiss, the district court dismissed Plaintiffs' unlawful-length-of-detention claims but permitted to proceed, inter alia, the substantive due process and equal protection claims 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, 129 S.Ct. 1937, which altered the pleading regime governing Plaintiffs' claims. In light of these events and the remaining Plaintiffs' stated desire to replead claims unique to the settling Plaintiffs, this Court affirmed the dismissal of the length of detention claims but vacated and remanded with respect to the conditions of 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 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' Allegations7

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 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...

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