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No. 07-1015

In the Supreme Court of the United States

JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL OF

THE UNITED STATES, AND ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, PETITIONERS

v.

JAVAID IQBAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
CURTIS E. GANNON
Assistant to the Solicitor
General
BARBARA L. HERWIG
ROBERT M. LOEB
SHARON SWINGLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether a conclusory allegation that a cabinet- level officer or other high-ranking official knew of, con doned, or agreed to subject a plaintiff to allegedly unconstitutional acts purportedly committed by subor dinate officials is sufficient to state individual-capacity claims against those officials under Bivens.

2. Whether a cabinet-level officer or other high- ranking official may be held personally liable for the allegedly unconstitutional acts of subordinate officials on the ground that, as high-level supervisors, they had con structive notice of the discrimination allegedly carried out by such subordinate officials.

PARTIES TO THE PROCEEDINGS

In addition to the parties identified in the caption, the following six individuals were parties in the court of appeals. Each of them was a defendant in the district court and an appellant in the court of appeals:

Dennis Hasty, former Warden of the Metropolitan Detention Center; Michael Cooksey, former Assistant Director for Correctional Programs of the Bureau of Prisons; David Rardin, former Director of the Northeast Region of the Bureau of Prisons; Michael Rolince, former Chief of the Federal Bureau of Investigation's International Terrorism Operations Section, Counter terrorism Division; Kathleen Hawk Sawyer, former Director of the Federal Bureau of Prisons; Kenneth Maxwell, former Assistant Special Agent in Charge, New York Field Office, Federal Bureau of Investigation.

In the Supreme Court of the United States

No. 07-1015

JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL OF

THE UNITED STATES, AND ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, PETITIONERS

v.

JAVAID IQBAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Solicitor General, on behalf of John D. Ashcroft, former Attorney General of the United States, and Rob ert Mueller, Director of the Federal Bureau of Investi gation, respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Ap peals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, 1a- 70a) is reported at 490 F.3d 143. The order of the dis trict court dismissing some, but not all, of the claims against petitioners (App., infra, 71a-150a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 14, 2007. Petitions for rehearing were denied on September 18, 2007 (App., infra, 151a-152a). On Decem ber 7, 2007, Justice Ginsburg extended the time within which to file a petition for a writ of certiorari to January 16, 2008. On January 4, 2008, Justice Ginsburg further extended that time to February 6, 2008. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. This case involves civil claims brought by Javaid Iqbal (respondent), a citizen of Pakistan who was ar rested by federal officials in New York City following the September 11, 2001 attacks and detained at the Met ropolitan Detention Center (MDC) in Brooklyn pending trial on charges of conspiracy to defraud the United States and fraud in relation to identification documents. App., infra, 3a-4a & n.1. Respondent ultimately pleaded guilty and, after the period at issue in the complaint, was sentenced to a 16-month term of imprisonment and re moved to Pakistan. Id. at 7a, 73a n.1.

In relevant part, respondent asserts that his deten tion in highly restrictive conditions of confinement from January to July 2002 resulted from unlawful racial and religious discrimination for which petitioners are per sonally liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and liable as co-conspirators under 42 U.S.C. 1985(3).1 See App., infra, 201a-203a, 206a-209a (First Am. Compl. ¶¶ 231-236, 246-251 (Compl.)). He seeks compensatory and punitive damages from petitioners, as well as attorney's fees and costs. Id. at 202a, 203a, 207a, 209a, 214a (Compl. ¶¶ 233, 236, 248, 251; Prayer for Re lief). Respondent also asserts claims against various other Department of Justice officials allegedly responsi ble for the conditions of his confinement and other al leged mistreatment, including employees of the MDC, the Bureau of Prisons, and the Federal Bureau of Inves tigation (FBI). Id. at 7a n.3, 87a-91a (summarizing claims against each defendant).2

In support of his claims against petitioners, respon dent alleges that, as Attorney General and FBI Direc tor, they "approved" a policy of detaining suspects de termined to be "of high interest" to the FBI's investiga tion into the September 11th terrorist attacks "in highly restrictive conditions of confinement until they were 'cleared' by the FBI." App., infra, 168a (Compl. ¶ 69). Respondent claims that two lower-level FBI officials responsible for implementing that policy selected him as a "high interest" suspect on the basis of discriminatory criteria. See id. at 164a-165a (Compl. ¶ 51) (alleging that respondent was selected by defendants Rolince and/or Maxwell as a "high interest" suspect because of his race or religion), 169a (Compl. ¶ 76) (alleging that defendants Rolince and Maxwell refused to clear detain ees for release to the general population "based simply on the detainees' race, religion, and national origin").

Respondent also alleges that, "[i]n many cases," de tainees were classified as "high interest" because of their "race, religion, and national origin" rather than "any evidence of the detainees' involvement in support ing terrorist activity," and that, "within the New York area, all Arab Muslim men arrested on criminal or immi gration charges while the FBI was following an investi gative lead into the September 11th attacks-however unrelated the arrestee was to the investigation-were immediately classified as 'of interest' to the post- September-11th investigation." App., infra, 164a, 165a (Compl. ¶¶ 49, 52). With regard to his own treatment, respondent alleges that, more than two months after he was arrested, he was classified as being "of high inter est" to the September 11th investigation, and thus trans ferred from the general population at the MDC to the facility's "Administrative Maximum Special Housing Unit." Id. at 165a, 169a (Compl. ¶¶ 53, 80-81).

Apparently seeking to connect petitioners to his "high interest" classification, respondent asserts that, as Attorney General, petitioner Ashcroft had "ultimate responsibility for the implementation and enforcement of the immigration and federal criminal laws" and was "a principal architect of the policies and practices chal lenged here." App., infra, 157a (Compl. ¶ 10). Respon dent also alleges that, as the Director of the FBI, peti tioner Mueller "was instrumental in the adoption, pro mulgation, and implementation of the policies and prac tices challenged here." Ibid. (Compl. ¶ 11). Respondent further alleges that, "under the direction of [petitioner] Mueller," the FBI "arrested and detained thousands of Arab Muslim men" in the course of investigating the September 11th attacks. Id. at 164a (Compl. ¶ 47).

Finally, respondent makes a generalized allegation that petitioners "knew of, condoned, and willfully and maliciously agreed to subject [him] to these conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no le gitimate penological interest." App., infra, 172a-173a (Compl. ¶ 96).

2. Various defendants, including petitioners, moved to dismiss the claims against them. In relevant part, the district court refused to dismiss the Bivens and conspir acy claims against petitioners. App., infra, 133a-137a, 142a-146a, 150a. The court ruled that allegations that respondent was confined in significantly harsher condi tions solely because of his race and religion were suffi cient to state a violation of clearly established law, and that he had adequately alleged personal involvement by petitioners in the adoption of the detention policy for "high interest" detainees. Id. at 133a-137a, 142a-146a. The court acknowledged that personal involvement was "a closer question" for the defendants (including peti tioners) who were higher in the chain of command than the Wardens. Id. at 116a. Nevertheless, in light of re spondent's general allegations and the "unique context" of the Justice Department's investigation into the Sep tember 11th attacks, the court found, with respect to each of the relevant counts, that it could not conclude there is "no set of facts" on which respondent would be entitled to relief from petitioners. Id. at 136a-137a, 146a.

3. a. The court of appeals affirmed in relevant part. App., infra, 1a-70a. The court focused on "several issues concerning the defense of qualified immunity in the af termath of the events of 9/11." Id. at 2a.

In addressing pleading requirements, the court of appeals specifically discussed four of this Court's deci sions. App., infra, 15a-27a (citing and discussing Leath erman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993); Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Crawford-El v. Britton, 523 U.S. 574 (1998); and Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007)). It observed that those decisions are "not readily harmonized," id. at 15a, and suggested that "[c]onsiderable uncertainty" exists under this Court's precedents concerning "the standard for assessing the adequacy of pleadings," id. at 19a. Never theless, the court interpreted this Court's precedents as requiring "a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Id. at 25a.

The court stated that it saw "some merit" to the view that a more rigorous standard should be applied. App., infra, 25a. The court explained that "qualified immunity is a privilege that is essential to the ability of govern ment officials to carry out their public roles effectively without fear of undue harassment by litigation." Ibid. Moreover, the court continued, "some of [respondent's] claims are based not on facts supporting the claim but, rather, on generalized allegations of supervisory involve ment," and allowing such claims to proceed "might facili tate the very type of broad-ranging discovery and litiga tion burdens that the qualified immunity privilege was intended to prevent." Ibid. However, the Court be lieved it was bound by this Court's precedents to apply the "more flexible 'plausibility standard'" it described. Ibid.; see id. at 25a-26a.

Applying that "plausibility" standard to the claims against petitioners, the court of appeals held that re spondent had sufficiently pleaded valid claims against petitioners for racial or religious discrimination and for conspiring to violate his civil rights. App., infra, 62a- 63a, 65a. The court held that allegations that respon dent was deemed to be a "high interest" detainee solely because of his race and religion were sufficient to make out claims of unlawful discrimination. Id. at 59a. The court relied on Crawford-El and Swierkiewicz for the proposition that conclusory allegations of discriminatory motive are sufficient to survive summary disposition. Id. at 61a. The court also relied on respondent's allega tions that all Arab Muslim men arrested on criminal or immigration charges in the New York region in the course of the FBI's investigation into the September 11th attacks were initially classified as being "of inter est." Ibid.

Moreover, the court of appeals held that the allega tions against petitioners were sufficient to establish their personal involvement in or responsibility for the alleged discriminatory conduct. App., infra, 62a. The court cited respondent's allegations that petitioners "were instrumental in adopting the 'policies and prac tices challenged,'" that thousands of Arab Muslims were arrested "under the direction of [petitioner] Mueller," and that petitioners "knew of, condoned, and willfully and maliciously agreed to subject [respondent] to these conditions of confinement as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." Ibid. Although the court acknowledged that officials other than peti tioners were the ones who had selected respondent as a "high interest" detainee, it concluded that fact "does not necessarily insulate Ashcroft and Mueller from personal responsibility for the actions of their subordinates under the standards of supervisory liability." Ibid. Thus, the court held that "the allegation that [petitioners] con doned and agreed to the discrimination that [respon dent] alleges satisfies [the court's] plausibility standard without an allegation of subsidiary facts." Ibid.

b. Judge Cabranes joined the panel's opinion but filed a separate concurrence to "underscor[e] that some of [the Supreme Court's] precedents are less than crys tal clear and fully deserve reconsideration by the Su preme Court at the earliest opportunity." App., infra, 68a. In particular, Judge Cabranes highlighted the "un easy" tension between this Court's interpretation of gen eral civil pleading requirements and qualified-immunity doctrine. Ibid. Although most of the conduct com plained of by respondent was alleged to have been car ried out by lower-level officials, Judge Cabranes noted that it is nevertheless "possible that the incumbent Di rector of the Federal Bureau of Investigation and a for mer Attorney General of the United States will have to submit to discovery, and possibly to a jury trial, regard ing [respondent's] claims." Id. at 69a.

Judge Cabranes also emphasized that concerns about discovery abuse are "all the more significant in the con text of a lawsuit against * * * federal government offi cials charged with responsibility for national security and entitled by law to assert claims of qualified immu nity." App., infra, 69a. In addition, he observed that "it seems that little would prevent other plaintiffs claiming to be aggrieved by national security programs and poli cies of the federal government from following the blue print laid out by this lawsuit to require officials charged with protecting our nation from future attacks to submit to prolonged and vexatious discovery processes." Id. at 69a-70a. Nevertheless, Judge Cabranes ultimately deemed that troubling outcome to be compelled by the application of the "relevant precedents by a court of in ferior jurisdiction." Id. at 70a.

REASONS FOR GRANTING THE PETITION

The court of appeals held that cabinet-level officers and other high-ranking officials-in this case, a former Attorney General and the incumbent Director of the FBI-may be subjected to discovery and the demands of litigation (at least through the summary judgment stage) in this Bivens action based on bare and con clusory allegations that they knew about and condoned the allegedly discriminatory actions of much-lower-level officials in the Department of Justice in responding to an unprecedented national-security crisis. In addition, the Second Circuit's decision effectively holds that high- ranking officials-including Cabinet officers-may be held potentially liable in Bivens suits on a constructive notice theory that is tantamount to imposing respondeat superior liability.

This case thus presents two crucially important ques tions of concerning the scope of the protection afforded high-ranking government officials under qualified immu nity principles. First, whether conclusory allegations that high-level government officials had knowledge of alleged wrongdoing by subordinate officials are suffi cient to survive a motion to dismiss in an action brought under Bivens. And, second, whether high-level officials who lack actual knowledge of the risk that subordinates would engage in wrongdoing may nevertheless be held personally liable on the theory that their official posi tions gave them constructive knowledge. Those ques tions are important, and their importance is amplified in the context of high-ranking officials charged with re sponding to an extraordinary national-security crisis like the September 11 attacks.

Not only are the questions presented of vital impor tance, but the Second Circuit's decision conflicts with decisions of this Court and of other courts of appeals. First, the decision conflicts with this Court's holdings on the pleading standards for evaluating claims and the requirements for holding supervisors personally liable under Bivens and 42 U.S.C. 1983. While not acknowl edging the conflict with this Court's precedents, all the judges on the panel conceded difficulties in applying this Court's precedents and noted the value of clarification. See App., infra, 15a (panel decision) (the "guidance" provided by this Court's precedents "is not readily har monized"); id. at 68a (Judge Cabranes) (this Court's precedents are "less than crystal clear and fully deserve reconsideration by [this] Court at the earliest opportu nity"). Second, the Second Circuit's decision in this case deepens circuit splits on the questions presented.

Finally, the Second Circuit's decision could have sig nificant, adverse practical consequences. The analysis employed by the court of appeals will significantly un dermine the protections afforded by qualified immunity by potentially subjecting high-level government officials to discovery and even a trial based merely on conclusory allegations that such officials knew of or condoned al leged wrongdoing by subordinate officials. And, as this case underscores, it will do so even in the national-secu rity context, where there is an obvious "national interest in enabling Cabinet officers * * * to perform their sen sitive duties with decisiveness and without potentially ruinous hesitation." Mitchell v. Forsyth, 472 U.S. 511, 541 (1985) (Stevens, J., concurring in judgment); see Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam) (the qualified immunity "exists because 'officials should not err always on the side of caution' because they fear being sued"). Indeed, as Judge Cabranes observed, the decision below creates a "blueprint" for "plaintiffs claim ing to be aggrieved by national security programs and policies of the federal government * * * to require officials charged with protecting our nation from future attacks to submit to prolonged and vexatious discovery processes." App., infra, 69a-70a. This Court's review is therefore warranted.

I. Certiorari Is Warranted To Consider What Allegations Are Necessary To Vitiate The Qualified Immunity Of High-Ranking Government Officials From Suit

In holding that a motion to dismiss may be defeated by conclusory allegations that high-level government officials knew about the unlawful conduct of their subor dinates, the court of appeals misconstrued this Court's prior decisions. The court of appeals candidly acknowl edged that it struggled in interpreting this Court's deci sions, App., infra, 15a (panel decision); id. at 68a (Judge Cabranes), and that there was at least "some merit" to imposing a more rigorous pleading standard than the one described by the court of appeals, id. at 25a (panel decision); id. at 69a-70a (Judge Cabranes). Neverthe less, the result reached by the court of appeals is incon sistent with a proper understanding of this Court's deci sions in Crawford-El v. Britton, 523 U.S. 574 (1998), and Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). Moreover, further review is particularly warranted be cause the court of appeals' ruling creates a conflict with decisions of at least four other courts of appeals faced with similar facts, and its approach would largely evis cerate the important protections of the doctrine of quali fied immunity in the circumstances in which those protections are most acutely needed.

a. The court of appeals relied on a handful of con clusory allegations as the purported basis for holding petitioners potentially liable for alleged unlawful dis crimination and conspiracy-through the acts of subor dinate officials-to deprive respondent of his civil rights. Even at face value, those allegations do not show that respondent's right to relief against petitioners was any thing more than speculative. As this Court stated in Bell Atlantic, to defeat a motion to dismiss, the allega tions in a complaint must contain "more than labels and [legal] conclusions" and must "raise a reasonable expec tation that discovery will reveal evidence" that the de fendants engaged in unlawful conduct. 127 S. Ct. at 1965. Similarly, in Crawford-El, the Court contemplated that district courts will "protect[] the substance of the qualified immunity defense" by requiring plaintiffs to "'put forward specific, nonconclusory factual allegations' * * * in order to survive a prediscovery motion for dis missal or summary judgment." 523 U.S. at 598 (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991) (Kennedy, J., concurring in judgment)). Respondent's allegations against petitioners do not meet those burdens.

Respondent alleges that petitioners "approved" a policy of holding suspects deemed to be "of high inter est" to the September 11th investigation in highly re strictive conditions of confinement pending clearance by the FBI, App., infra, 168a (Compl. ¶ 69), but he does not claim that the policy was itself discriminatory. Rather, he claims that the policy was implemented in a discrimi natory fashion by two lower-level FBI officials, who were actually responsible for determining which sus pects were "of high interest" to the terrorism investiga tion. See id. at 164a-165a, 169a (Compl. ¶¶ 51, 76). Thus, respondent alleges only that "[i]n many cases," detainees were classified-by persons other than peti tioners-as being "of high interest" because of their race, religion, and national origin, "not because of any evidence of the detainees' involvement in supporting terrorist activity." Id. at 164a (Compl. ¶ 49). Respon dent also alleges that, "within the New York area, all Arab Muslim men arrested on criminal or immigration charges while the FBI was following an investigative lead into the September 11th attacks * * * were imme diately classified as 'of interest'" to the investigation. Id. at 165a (Compl. ¶ 52).

The underlying allegations do not support the conclu sory allegations about petitioners' personal involvement and, if anything, they affirmatively suggest a lack of personal involvement. The complaint alleges that (1) respondents approved only of a general policy, App., infra, 168a (Compl. ¶ 69); (2) the general policy was not discriminatory on its face, but rather in application, id. at 164a (Compl. ¶¶ 48-49); and (3) other defendants made the individual determinations at issue, id. at 164a- 165a (Compl. ¶¶ 50-51). Respondent does not allege that either petitioner participated in the classification deci sion, or that they knew which detainees were classified as being "of high interest," or even that they established the allegedly discriminatory criteria that were used by subordinate officials. Nor does respondent allege any communications between the individuals who allegedly made the classification at issue (Rolince and Maxwell) and petitioners, or that petitioners knew of any particu lar activities taken by the other defendants as to respon dent.

Respondent also alleges that petitioners had supervi sory authority over subordinate officials who imple mented the confinement policy, as part of their ultimate responsibility for investigating and prosecuting viola tions of federal criminal law. See App., infra, 157a, 164a (Compl. ¶¶ 10, 11, 47). As explained below (at pp. 26-29, infra), the mere fact of supervisory authority is not an adequate basis for holding petitioners personally liable for alleged wrongdoing committed by others, absent facts showing that they had actual knowledge of a sub stantial risk of wrongdoing and that their failure to take action was the proximate cause of respondent's alleged injuries. The allegations that petitioners had official authority over subordinates who were allegedly discrim inatory in their selection of "high interest" detainees are thus fully consistent with lawful behavior on petitioners' part. See Bell Atl. Corp., 127 S. Ct. at 1965-1966 (hold ing that a complaint must allege facts sufficient to make an inference of unlawful conduct plausible, and not merely possible, and that allegations that are fully con sistent with lawful behavior do not "raise a right to relief above the speculative level").

The very language of the court of appeals' opinion underscores the extent to which it was premised on speculative inferences. The court simply assumed that, in light of the importance of the investigation into the September 11th attacks, there was a "likelihood that these senior officials would have concerned themselves with the formulation and implementation of policies" for "high interest" suspects. App., infra, 62a; see also id. at 43a ("[I]t is plausible to believe that senior officials of the Department of Justice would be aware of policies concerning the detention of those arrested by federal officers in the New York City area in the aftermath of 9/11 and would know about, condone, or otherwise have personal involvement in the implementation of those policies."). But the requirement that the actual allega tions of the complaint be plausible, rather than specula tive, is not an invitation to engage in speculation con cerning matters that the plaintiff himself did not allege. And this case shows the hazards of such speculation. As the district court noted, the investigation was nothing short of "massive." Id. at 76a n.4. "Within 3 days [of September 11, 2001], more than 4,000 FBI Special Agents and 3,000 support personnel were assigned to work on the investigation," and "[b]y September 18, 2001, the FBI had received more than 96,000 leads from the public." Ibid. (emphases added). Given the unprec edented size of the investigation, there is every reason to assume that the Attorney General and the Director of the FBI did not personally do more than-as respondent specifically alleges-approve a general policy of using highly restrictive confinement for any "high interest" detainee until it could be established that he was not connected with terrorist activities.

Finally, respondent makes a conclusory allegation that petitioners "knew of, condoned, and willfully and maliciously agreed" to subject him to unlawful discrimi nation. App., infra, 172a (Compl. ¶ 96). But that is sim ply a legal conclusion and it is black-letter law that a court ruling on a motion to dismiss is not "bound to ac cept as true a legal conclusion couched as a factual alle gation." Papasan v. Allain, 478 U.S. 265, 286 (1986). This Court reaffirmed and elaborated on that proposi tion in Bell Atlantic, explaining that "a plaintiff's obliga tion to provide the 'grounds' of his 'entitle[ment] to re lief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"; rather, a plaintiff's factual allegations must do more than create a suspicion of actionable wrongdo ing. 127 S. Ct. at 1964-1965. Because the subsidiary factual allegations in the complaint in this case do not show that a right of recovery against petitioners is any thing more than speculative, the courts below should have granted their motion to dismiss.

b. The court of appeals invoked this Court's deci sions in Crawford-El and Swierkiewicz in holding that the allegations against petitioners-in particular the unsupported and conclusory allegation that they "knew of, condoned, and willfully and maliciously agreed" to discrimination-were sufficient to defeat summary dis position. App., infra, 61a-62a. Those cases lend no weight to the conclusion that an allegation of culpable mens rea, unsubstantiated by any predicate facts about the conduct that is the alleged basis for liability, is enough to defeat summary disposition.

In both Crawford-El and Swierkiewicz, the com plaints provided clear notice to the defendant of the con duct alleged to give rise to liability (i.e., the who, what, and when of the alleged wrongdoing). In Crawford-El, the plaintiff prisoner alleged that the defendant correc tions officer had deliberately misdelivered his box of personal belongings by asking his relative to pick them up rather than ship them to his next destination, and that she had done so in retaliation for the plaintiff's par ticipation in unfavorable press reporting about the prison. 523 U.S. at 578-579. The plaintiff also alleged specific statements by the defendant herself that pro vided circumstantial evidence of her discriminatory mo tivation. Id. at 579 n.1. Similarly, in Swierkiewicz, the plaintiff alleged that he was demoted by his employer's Chief Executive Officer and that the bulk of his former duties were transferred to a younger employee; that the CEO later said he wanted to "energize" his department and appointed the younger and less-qualified employee to the plaintiff's prior position; and that, following his demotion, the plaintiff was isolated by his supervisor and excluded from business decisions. 534 U.S. at 508. After outlining his grievances, the plaintiff was given the choice of resigning without a severance package and, when he refused to do so, was fired. See id. at 509; see also id. at 514 (noting that the complaint "detailed the events leading to [the plaintiff's] termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination"). Thus, the only issue before this Court in both cases was the showing of discriminatory motive necessary to defeat summary disposition of the claims. See Crawford-El, 523 U.S. at 577-578; Swierkiewicz, 534 U.S. at 513-514; see also Fed. R. Civ. P. 9(b) (requiring that fraud or mistake must be pleaded with particularity but that "[m]alice, intent, knowledge, and other condi tion of mind of a person may be averred generally").

Here, and in sharp contrast, respondent's allegations do not identify the specific conduct alleged to be the ba sis for petitioners' individual liability. He does not al lege the what of liability (i.e., any steps that the Attor ney General or FBI Director took to approve, condone, or ratify the discriminatory selection of respondent as a "high interest" detainee). Respondent does not allege when this conduct took place, who was involved, or where it occurred. And respondent does not allege a factual basis for inferring that petitioners' allegedly cul pable states of mind were the proximate cause of the allegedly discriminatory selection of respondent as a "high interest" detainee. The allegations against peti tioners are therefore analogous to the hypothetical alle gation of an unlawful agreement in Bell Atlantic, which this Court held could not satisfy Rule 8's notice require ments because it made no mention of any "specific time, place, or persons involved in the alleged conspiracies." 127 S. Ct. at 1970 n.10; see also id. at 1964 (holding that allegations in the complaint must "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests" (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

c. The decision of the court of appeals is not only erroneous, but also in conflict with decisions of at least four other courts of appeals holding that conclusory alle gations that high-level government officials are culpable for wrongdoing by subordinate officials or the agency itself are inadequate to defeat a motion to dismiss.

Thus, in Marrero-Gutierrez v. Molina, 491 F.3d 1 (2007), the First Circuit addressed allegations that gov ernment supervisors had "performed, fostered, and en couraged the continuous persecution, harassment, trans fers, reprisals and demotions" of the plaintiff "because of" her political affiliation, "and in reprisal for defending [her] rights in frivolous processes commenced against [her]." Gutiérrez v. Molina, 447 F. Supp. 2d 168, 175 (D.P.R. 2006). The court of appeals held that the plain tiff's allegations were insufficient to defeat a motion to dismiss on the pleadings, because they failed to "set forth any sort of causal connection between her demo tion and the political animus that she alleges prompted it." 491 F.3d at 9-10. Although "such a connection" was concededly "one among a myriad of possible inferences" from the alleged facts, the court found that insufficient under Bell Atlantic because "it would be speculative to draw the forbidden inference from the range of possibili ties." Id. at 10.

Similarly, in Evancho v. Fisher, 423 F.3d 347 (2005), the Third Circuit held that an allegation that the plain tiff's allegedly unlawful transfer "was carried out by underlings reporting directly to the [state] attorney gen eral and/or by the attorney general himself" did not suf fice to show the attorney general's personal involvement in the challenged decision. Id. at 354. Emphasizing that liability could not be based on respondeat superior, the court refused to infer that the attorney general was in volved in the challenged transfer simply because he had supervisory authority over the plaintiff. Id. at 353-354. The court also noted the difficulty that the attorney gen eral would have in framing an answer to the complaint, given the lack of any allegation of a specific act by him relating to the transfer. See id. at 354; see also ibid. (explaining that court was not required to credit the "bald assertion" that the attorney general had carried out the plaintiff's transfer in deciding motion to dis miss).

In Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348 (1989), cert. denied, 494 U.S. 1079 (1990), the Sixth Circuit affirmed the dismissal of Bivens claims brought against the Secretary of Energy and two other officials of the Department of Energy. The court held that allegations that the individual defen dants "acted to implement, approve, carry out, and oth erwise facilitate" allegedly unlawful conduct by the De partment were insufficient to defeat a motion to dismiss. See id. at 1355 (quoting the complaint); see also Nuclear Transp. & Storage, Inc. v. United States, 703 F. Supp. 660, 667-668 (E.D. Tenn. 1988), aff'd, 890 F.2d 1348 (6th Cir. 1989), cert. denied, 494 U.S. 1079 (1990). As the Sixth Circuit noted, if the plaintiff's conclusory allega tions against the individual defendants "were sufficient to state a claim, any suit against a federal agency could be turned into a Bivens action by adding a claim for damages against the agency head." 890 F.2d at 1355.3

And in Gonzalez v. Reno, 325 F.3d 1228 (2003), the Eleventh Circuit held that conclusory allegations that federal agents executing an arrest warrant for Elian Gonzalez "acted under the personal direction of" Attor ney General Janet Reno, INS Commissioner Doris Meissner, and Deputy Attorney General Eric Holder, and with those officials' "knowledge, agreement, ap proval, and acquiescence," were inadequate to survive a motion to dismiss. Id. at 1235. The Eleventh Circuit noted that the plaintiff had failed to allege any facts sup porting these conclusory allegations, and held that it would be unreasonable to infer without additional sup port that the high-level officials had directed unconstitu tional conduct. Id. at 1235-1236. Particularly in light of "the presumption of legitimacy accorded to official con duct," the reasonable inference from the facts alleged "is that the supervisory defendants ordered the execution of valid search and arrest warrants with the expectation that the agents on the scene would execute them in a lawful manner." Ibid.; see also Dalrymple v. Reno, 334 F.3d 991, 996-997 (11th Cir. 2003) (holding, in companion case, that allegations that Attorney General Reno "knew and intended" that subordinate officers carrying out a federal raid would subject bystanders to excessive force were insufficient to defeat a motion to dismiss), cert. denied, 541 U.S. 935 (2004).

d. By permitting unsubstantiated allegations of cul pable knowledge to be the basis for discovery against high-level government officials, the court of appeals has substantially undermined the effectiveness of the doc trine of qualified immunity. This Court has long ac knowledged the "social costs" of allowing Bivens claims against government officials, including "the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office." Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982). The type of claims in this case- challenging as culpable the mens rea of high-level gov ernment officials-raises particularly serious problems in this regard, because such claims inevitably result in discovery into the subjective motivations and state of mind of senior officials. As the Court recognized in Harlow, such inquiries are "peculiarly disruptive of ef fective government" and "frequently could implicate separation-of-powers concerns." Id. at 817 & n.28. Moreover, the nature of the responsibilities of high- ranking officials means that, if conclusory allegations suffice, they could be subject to a high volume of disrup tive suits that could divert the officials' attention from their important responsibilities.

Although this Court has rejected a heightened plead ing standard for claims alleging improper motive that are subject to a qualified-immunity defense, it has nev ertheless emphasized that a district court should "pro tect[] the substance of the qualified immunity defense" by, inter alia, "insist[ing] that the plaintiff 'put forward specific, nonconclusory factual allegations' that establish improper motive causing cognizable injury in order to survive a prediscovery motion for dismissal." Crawford- El, 523 U.S. at 597-598 (quoting Siegert, 500 U.S. at 236 (Kennedy, J., concurring in judgment)); see also Bell Atl. Corp., 127 S. Ct. at 1973 n.14 (noting that "we do not apply any heightened pleading standard," but holding that the plaintiff failed to state a claim under a proper understanding of Rule 8) (internal quotation marks omitted).

By failing to require that level of specificity in this case, the court of appeals has effectively precluded peti tioners from arguing that, in the circumstances in which they acted, their conduct was objectively reasonable and thus shielded by qualified immunity.4 As a consequence, the decision below has, as Judge Cabranes observed, created a "blueprint" that can now be used by others "claiming to be aggrieved by national security programs and policies of the federal government" to "require offi cials charged with protecting our nation from future attacks to submit to prolonged and vexatious discovery processes." App., infra, 69a-70a. For some plaintiffs, the opportunity to distract the attention of high-ranking officials in carrying out policies with which they disagree may itself be a strong incentive for filing suit.

The availability of such a blueprint is especially trou bling in the national-security context-not only because "there surely is a national interest" in having govern ment officials perform such "sensitive duties with deci siveness and without potentially ruinous hesitation," but also because "[t]he passions aroused by matters of na tional security * * * and the high profile of the Cabi net officers with functions in that area make them 'easily identifiable target[s] for suits for civil damages'" or even for "vexatious and politically motivated litigation." Mitchell, 472 U.S. at 541-542 (Stevens, J., concurring in judgment) (quoting Nixon v. Fitzgerald, 457 U.S. 731, 753 (1982)). Cf. Wilson v. Libby, 498 F. Supp. 2d 74, 96 (D.D.C. 2007) (refusing to infer a remedy under Bivens in part because of "the risks incurred by discovery into issues of national security"). Indeed, this case focuses on the actions of the highest-ranking Department of Justice officials in the immediate aftermath of the dead liest attack on American soil in the Nation's history. It is unlikely that the demands placed on those officials by such litigation will escape the notice of the individuals who occupy those positions in the event of any future national-security crisis. Cf. Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (L. Hand, J.) (to deny qualified immunity would "dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharge of their duties"), cert. denied, 339 U.S. 949 (1950).

The fact that this case is at the dismissal stage does not alleviate the need for this Court's review. The qualified-immunity doctrine provides not merely immu nity from liability but "immunity from suit." Mitchell, 472 U.S. at 526. And this Court has "repeatedly * * * stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter, 502 U.S. at 227 (citing cases). As the Court has explained, that proactive approach is warranted to "weed out suits * * * without requiring a defendant who rightly claims qualified immunity to engage in expensive and time con suming preparation to defend the suit on its merits." Siegert, 500 U.S. at 232; see also Harlow, 457 U.S. at 818 (until the "threshold immunity issue is resolved, discov ery should not be allowed"). As Judge Cabranes ob served, allowing suits, such as this, against high-ranking officials predicated only on conclusory allegations of general knowledge of the alleged actions of lower-level officials to proceed past the dismissal stage could "re quire officials charged with protecting our nation from future attacks to submit to prolonged and vexatious dis covery processes." App., infra, at 70a. Such "discovery would not only result in significant cost but would also deplete the time and effectiveness of current officials and the personal resources of former officials." Id. at 70a n.1.5

This Court's review is warranted to protect high- level officials from the burden of defending against un substantiated claims premised on little more than a con clusory allegation of a culpable state of mind.

II. Certiorari Is Warranted To Consider Whether High- Ranking Officials May Be Held Liable In A Bivens Ac tion Based On A Constructive Notice Theory

This Court's review is also warranted to consider whether high-level government officials may be held personally liable for wrongdoing of which they lacked actual knowledge on the theory that their official re sponsibilities gave them constructive notice of the ac tions of subordinate officials. The Second Circuit's re fusal to dismiss the claims against petitioners was predi cated on its holding that the Attorney General and FBI Director could be held liable for inadequate supervision of subordinates, even without any allegations that could support a finding of actual knowledge of a risk of uncon stitutional conduct by others. That holding is inconsis tent with the general presumption of regularity that applies to the actions of government officials, see United States v. Armstrong, 517 U.S. 456, 464 (1996), and with this Court's decisions. It also implicates a clear circuit split on the important question whether actual knowl edge is necessary for supervisory liability.

a. In holding that the allegations against petitioners were adequate to subject them to discovery, the court of appeals emphasized that, as agency heads, petitioners had ultimate responsibility over the policies and prac tices challenged in the lawsuit, and specifically that the FBI's arrest and detention of thousands of Arab Muslim men in the course of investigating the September 11th attacks took place "under the direction of [petitioner] Mueller." App., infra, 62a. Although, as discussed, the general policy alleged by respondent was not discrimina tory on its face, and although the court of appeals recog nized that other officials-and not petitioners-were in fact responsible for the classification of respondent as a "high interest" detainee, the court reasoned that peti tioners nevertheless could be held personally responsi ble "for the actions of their subordinates under the stan dards of supervisory liability." Ibid.

In the Second Circuit, those standards permit a su pervisor to be held personally liable under Section 1983 or Bivens based not only on the supervisor's actual knowledge, but also on merely constructive knowledge, of a risk of wrongdoing by subordinate officials. See App., infra, 14a (holding that supervisor may be liable for, inter alia, gross negligence in supervising subordi nates who commit constitutional violation); accord, e.g., Poe v. Leonard, 282 F.3d 123, 141-142 (2d Cir. 2002); Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996); Meriwether v. Coughlin, 879 F.2d 1037, 1048 (2d Cir. 1989); McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087 (1978).6

b. The court of appeals' endorsement of supervisory liability on a theory of negligent supervision is contrary to the approach this Court has adopted in related con texts. In Section 1983 suits-the "analog" to Bivens for state actions, see Hartman v. Moore, 547 U.S. 250, 254 n.2 (2006)-the Court has foreclosed the imposition of Section 1983 liability on individual government officials on the basis that they had "constructive notice" of wrongdoing committed by third parties. In Rizzo v. Goode, 423 U.S. 362 (1976), the Court reversed a grant of injunctive relief under Section 1983 against the mayor, the city manager, the police commissioner, and other police supervisors in Philadelphia. It concluded that there could be no supervisory liability under Sec tion 1983 when "unconstitutional exercises of police power" had been committed by individual police officers rather than their supervisors and "there was no affirma tive link between the occurrence of the various incidents of police misconduct and the adoption of any plan or pol icy by [the supervisors]-express or otherwise-show ing their authorization or approval of such misconduct." Id. at 371, 377. Although administrators may be liable when they deny rights "by their own conduct," that was not the case in Rizzo, because "the responsible authori ties had played no affirmative part" in violating constitu tional rights. Id. at 377.

The general restraint that this Court traditionally exercises in interpreting the scope of the Bivens cause of action (see Wilkie v. Robbins, 127 S. Ct. 2588 (2007)) at a minimum calls for adopting a standard of secondary liability that is at least as rigorous as the one that this Court has long applied in the Section 1983 context. And, indeed, in Farmer v. Brennan, 511 U.S. 825 (1994), the Court held that a supervisory-level prison official can be held liable for dangerous prison conditions alleged to violate the Eighth Amendment only if the supervisor "knows of and disregards an excessive risk to inmate health or safety" (i.e., is subjectively aware of the risk to the prisoner and chooses to disregard it). Id. at 837-838. In adopting that requirement of subjective knowledge as the predicate for "deliberate indifference," the Court distinguished individual defendants from corporate mu nicipalities, for which an objective standard of knowl edge is more appropriate. See id. at 841-842.

The Court has followed a similar approach in Section 1983 actions against municipalities. There, the Court has held that liability attaches only "when it can be fairly said that the city itself is the wrongdoer," Collins v. City of Harker Heights, 503 U.S. 115, 122 (1992), and not based on a theory of respondeat superior or vicari ous liability. See City of Canton v. Harris, 489 U.S. 378, 386-387 (1989). Where a plaintiff seeks to hold a munici pality liable for constitutional torts committed by its agents, the plaintiff must "demonstrate that, through its deliberate conduct, the municipality was the 'moving force' behind the injury alleged." Board of the County Comm'rs v. Brown, 520 U.S. 397, 404 (1997); see also id. at 405 (explaining that "rigorous standards of culpability and causation must be applied"). Liability may not be imposed based on "simple or even heightened negli gence," but instead requires a showing that the munici pality itself manifested "deliberate indifference to the risk that a violation of a particular constitutional or stat utory right" might occur. Id. at 407, 411. The plaintiff must also establish "a direct causal link" between the municipality's culpable conduct "and the alleged consti tutional deprivation." Harris, 489 U.S. at 385.

No more lenient standard than the deliberate-indif ference standard should apply where a plaintiff seeks to hold a supervisory official such as the Attorney General or the Director of the FBI personally liable under Bivens for unconstitutional conduct allegedly committed by a subordinate employee. The rationale for imposing liability is the same in both instances, as is the rule that liability must be predicated on the defendant's own cul pable conduct rather than vicarious liability or res pondeat superior.

As applied to the allegations in this case, the stan dard articulated in Farmer for "deliberate indifference" would preclude liability unless petitioners had actual knowledge of the discriminatory selection of suspects as "of high interest" (or of a significant risk of discrimina tory selections). See Farmer, 511 U.S. at 837-838; Brown, 520 U.S. at 414. But the factual allegations in respondent's complaint could not establish that petition ers knew of any serious risk that subordinates were en gaged in unlawful discrimination, much less knew of the alleged unlawful conduct against respondent himself. Furthermore, respondent's factual allegations do not show any causal relationship between petitioners' own conduct and respondent's designation as a suspect "of high interest." Absent such allegations, respondent's right to relief was purely speculative.

c. The court of appeals' holding implicates a clear and well-developed split among the circuits on the ques tion whether a government official may be held person ally liable based on constructive notice of actual wrong doing or the risk of wrongdoing by subordinates, or must instead have actual notice of the wrongdoing or risk of wrongdoing.

As one commentator has noted, "[t]he Second Cir cuit's test for supervisory liability is the most expansive and the least reconcilable with Rizzo." Michael S. Bogren, Municipal Liability Under § 1983, in Sword & Shield Revisited 215, 255 (Mary Massaron Ross ed., 1998) (Bogren). But other circuits-the First, Fourth, and Eighth Circuits-have also deviated from Rizzo's requirement that a supervisor be liable only when he or she has some direct responsibility for the alleged consti tutional violation. See ibid.; Rodriguez-Garcia v. Mu nicipality of Caguas, 495 F.3d 1, 10 (1st Cir. 2007) (hold ing that a plaintiff may establish supervisor liability by showing "that the official had actual or constructive no tice of the constitutional violation"); Carter v. Morris, 164 F.3d 215, 221 (4th Cir. 1999) (stating that supervisor liability requires a showing of "actual or constructive knowledge of a risk of constitutional injury, deliberate indifference to that risk, and an affirmative causal link between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff") (internal quotation marks omitted); Hall v. Lombardi, 996 F.2d 954, 961 (8th Cir. 1993) ("[P]roof of actual knowledge is not an absolute prerequisite for imposing supervisory liability. We have consistently held that reckless disre gard on the part of a supervisor will suffice to impose liability.") (internal quotation marks and citations omit ted), cert. denied, 510 U.S. 1047 (1994).

By contrast, the Third Circuit does not impose liabil ity on a supervisor unless the supervisor actually knew of the subordinate's conduct and either approved of it or acquiesced in it. See Baker v. Monroe Twp., 50 F.3d 1186, 1194 (1995); id. at 1194 n.5 (noting "that other cir cuits have developed broader standards for supervisory liability under section 1983"); id. at 1200-1201 (Alito, J., concurring and dissenting) (stating test and concluding that actual knowledge of, and acquiescence in, an unlaw ful search could not be inferred under the circum stances). The Tenth Circuit has expressly followed the Third Circuit. See, e.g., Woodward v. City of Worland, 977 F.2d 1392, 1400 (1992) ("We are persuaded that the proper articulation of the test for supervisory liability under section 1983 is that set forth by the Third Circuit * * * where * * * supervisor liability requires 'allega tions of personal direction or of actual knowledge and acquiescence.'") (internal citation and quotation marks omitted), cert. denied, 509 U.S. 923 (1993). The Seventh Circuit has similarly rejected liability for a supervisor who negligently fails to detect and prevent subordinate misconduct, see Gossmeyer v. McDonald, 128 F.3d 481, 495 (1997), and it has required plaintiffs to establish that supervisors were "personally involved or acquiesced in the alleged constitutional violation," Kelly v. Municipal Courts, 97 F.3d 902, 909 (1996).

As then-Judge Roberts explained for the D.C. Cir cuit, when "supervisors cannot be shown to have the requisite direct responsibility or to have given their au thorization or approval of * * * misconduct," then "the effort to hold them personally liable fades into respon deat superior or vicarious liability, clearly barred under Section 1983." International Action Ctr. v. United States, 365 F.3d 20, 27 (2004) (internal quotation marks omitted). The principles of restraint that this Court applies in interpreting the scope of the Bivens cause of action compel the same conclusion here. And that is especially true in the context of this case, involving claims against high-ranking government officials arising out of the alleged conduct of inferior officials during an unprecedented national-security crisis.

d. The question of the level of knowledge needed to hold a supervisory official liable for wrongdoing commit ted by subordinate officials is of substantial importance and warrants clarification by this Court. Cf. Bogren 257-258 ("The divergence of the circuits on the issue of supervisory liability leads to the inescapable conclusion that the Supreme Court will have to revisit this issue. In the meantime, * * * there is no bright-line rule on which a practitioner can rely."). By permitting supervi sory officials to be held liable based on a theory of con structive notice, the court of appeals has inappropriately expanded the inferred Bivens remedy to encompass something approaching respondeat superior liability. That result poses a significant threat to high-level gov ernment officials of crippling personal liability, and ac cordingly exacerbates the practical harms of a Bivens claim against supervisory officials. Cf. Robertson v. Sichel, 127 U.S. 507, 515 (1888) ("Competent persons could not be found to fill [supervisory] positions * * * if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly im possible for the superior officer to discharge in per son."). Moreover, a high-ranking official without actual notice of wrongdoing by subordinates will necessarily have little control over where the wrongdoing occurs or where suit is brought. The divergence of authority among the circuits is therefore patently unfair to high- ranking officials.

In this case, the impact of the Second Circuit's broad conception of supervisory liability under Bivens, coupled with its lenient pleading standard, is startling. As Judge Cabranes observed, under the court of appeals' decision, the former Attorney General and current FBI Director "may be required to comply with inherently onerous discovery requests probing, inter alia, their possible knowledge of actions taken by subordinates at the Fed eral Bureau of Investigation and the Federal Bureau of Prisons at a time when [petitioners] were trying to cope with a national and international security emergency unprecedented in the history of the American Republic." App., infra, 69a. What is more, the court's decision es tablishes a "blueprint" for "other plaintiffs claiming to be aggrieved by national security programs and policies of the federal government * * * to require officials charged with protecting our nation from future attacks to submit to prolonged and vexatious discovery." Id. at 69a-70a. The court of appeals decision producing that unsettling result warrants this Court's review.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
CURTIS E. GANNON
Assistant to the Solicitor
General
BARBARA L. HERWIG
ROBERT M. LOEB
SHARON SWINGLE
Attorneys

FEBRUARY 2008

1 Respondent's remaining claims against petitioners were ordered dismissed on other grounds and are not at issue here.

2 One of the other government officials sued by respondent, former Warden Dennis Hasty, has already filed a petition for a writ of certio rari seeking review of the judgment below. See Pet., Hasty v. Iqbal, No. 07-827 (filed Dec. 17, 2007).

3 Although Nuclear Transport was decided at a time when the Sixth Circuit applied a heightened pleading standard to civil-rights claims against government officials, the standard that the Sixth Circuit applied in that case is comparable to the standard articulated by this Court in decisions like Bell Atlantic and Crawford-El. See Nuclear Transport, 890 F.2d at 1355 (complaint "must contain more than 'mere conclusory allegations of unconstitutional conduct'" by government officials) (quo ting Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1986)). In addition, the Sixth Circuit has subsequently described as "well-settled" the principle that a plaintiff must "allege that a specific defendant performed a specific act that suffices to state a claim." Kesterson v. Moritsugu, No. 96-5898, 1998 WL 321008, at *4 (June 3, 1998).

4 The specific context in which government officials act is always relevant to the qualified-immunity analysis. See, e.g., Brosseau v. Hau gen, 543 U.S. 194, 199 (2004) (per curiam) ("The relevant, dispositive inquiry * * * is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.") (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)).

5 The panel decision stressed that the district court should take care in allowing discovery against petitioners. App., infra, 67a. But, as this Court emphasized in Bell Atlantic, "[i]t is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through 'careful case management,' given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side." 127 S. Ct. at 1967 (citation omitted). Rather, the court's responsibility is to "tak[e] care to require allegations that reach the [requisite] level" in the first place before allowing any discovery to ensue. Ibid.

6 In light of established circuit precedent, petitioners did not brief the question of actual knowledge in the court of appeals. But petition ers "argue[d] that [respondent] failed to allege their personal involve ment in any discrimination," and the court rejected that argument on the express assumption that they could have "personal responsibility for the actions of their subordinates" even in the absence of actual knowledge. App., infra, 62a.

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

Nos. 05-5768-CV (L), 05-5844-CV (con), 05-6379-CV (con), 05-6352-CV (con), 05-6386-CV (con), 05-6358-CV (con), 05-6388-CV (con)

JAVAID IQBAL, PLAINTIFF-APPELLEE

v.

DENNIS HASTY, FORMER WARDEN OF THE METROPOLITAN DETENTION CENTER, MICHAEL COOKSEY, FORMER ASSISTANT DIRECTOR FOR CORRECTIONAL PROGRAMS OF THE BUREAU OF PRISONS, JOHN ASHCROFT, FORMER ATTORNEY GENERAL OF THE UNITED STATES, ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, DAVID RARDIN, FORMER DIRECTOR OF THE NORTHEAST REGION OF THE BUREAU OF PRISONS, MICHAEL ROLINCE, FORMER CHIEF OF THE FEDERAL BUREAU OF INVESTIGATION'S INTER NATIONAL TERRORISM OPERATIONS SECTION, COUNTERTERRORISM DIVISION, KATHLEEN HAWK SAWYER, FORMER DIRECTOR OF THE FEDERAL BUREAU OF PRISONS, KENNETH MAXWELL, FORMER ASSISTANT SPECIAL AGENT IN CHARGE, NEW YORK FIELD OFFICE, FEDERAL BUREAU OF INVESTIGATION, DEFENDANTS-APPELLANTS

Heard: Oct. 4, 2006
Decided: June 14, 2007

Before: NEWMAN, CABRANES, and SACK, Circuit Judges.

JON O. NEWMAN, Circuit Judge.

These interlocutory appeals present several issues concerning the defense of qualified immunity in the af termath of the events of 9/11. Several current and for mer government officials from the Department of Jus tice, the Federal Bureau of Investigation ("FBI"), and the Bureau of Prisons ("BOP") appeal from the Septem ber 27, 2005, Order of the District Court for the Eastern District of New York (John Gleeson, District Judge) denying in part their motions to dismiss on the ground of qualified immunity. See Elmaghraby v. Ashcroft, No. 04 CV 1409, 2005 WL 2375202 (E.D.N.Y. Sept. 27, 2005) ("Dist. Ct. op."). Plaintiff-Appellee Javaid Iqbal alleges that the Defendants-Appellants took a series of uncon stitutional actions against him in connection with his confinement under harsh conditions at the Metropolitan Detention Center ("MDC") in Brooklyn, after separation from the general prison population. We conclude that the defense of qualified immunity, to the extent rejected by the District Court, cannot be sustained as to any De fendants at this preliminary stage of the litigation ex cept as to the claim of violation of procedural due pro cess rights, and we therefore affirm in part, reverse in part, and remand.

Background

Parties. Iqbal is a Muslim Pakistani currently resid ing in Pakistan. Iqbal's co-plaintiff was Ehad Elma ghraby, a Muslim Egyptian. After Judge Gleeson's rul ing on the motions to dismiss, the United States settled Elmaghraby's claims by payment of $300,000.

Four groups of Defendants have filed appeals from Judge Gleeson's order. The first group consists of for mer Attorney General John Ashcroft and current FBI Director Robert Mueller. The second group consists of Michael Rolince, former Chief of the FBI's International Terrorism Operations Section, Counterterrorism Divis ion, and Kenneth Maxwell, former Assistant Special Agent in Charge of the FBI's New York Field Office (the "FBI Defendants"). The third group consists of former BOP officials: Kathleen Hawk Sawyer, former BOP Director; David Rardin, former Director of the Northeast Region of the Bureau of Prisons; and Michael Cooksey, former Assistant Director for Correctional Programs of the Bureau of Prisons (the "BOP Defen dants"). The fourth appeal was filed by Dennis Hasty, former MDC Warden. Other Defendants include Mich ael Zenk, MDC Warden at the time the lawsuit was filed, other MDC staff, and the United States.

Factual allegations. The complaint alleges the fol lowing facts, which are assumed to be true for purposes of the pending appeals, as we are required to do in re viewing a ruling on a motion to dismiss. See Hill v. City of New York, 45 F.3d 653, 657 (2d Cir. 1995). The Plain tiff was arrested by agents of the FBI and the Immigra tion and Naturalization Service on November 2, 2001.1 Following his arrest, he was detained in the MDC's gen eral prison population until January 8, 2002, when he was removed from the general prison population and assigned to a special section of the MDC known as the Administrative Maximum Special Housing Unit ("ADMAX SHU"), where he remained until he was reas signed to the general prison population at the end of July 2002. On this appeal, we consider only claims con cerning the Plaintiff's separation from the general pri son population and confinement thereafter in the AD MAX SHU. We do not consider the legality of his arrest or his initial detention in the MDC.

The complaint further alleges that in the months af ter 9/11, the FBI arrested and detained thousands of Arab Muslim men as part of its investigation into the events of 9/11. The fact of their detention, its duration, and the conditions of confinement depended on whether those arrested were classified as "of high interest." Many of these men, including the Plaintiff, were classi fied as "of high interest" solely because of their race,2 religion, and national origin and not because of any in volvement in terrorism. In the New York City area, all Arab Muslim men arrested on criminal or immigration charges while the FBI was investigating a 9/11 lead were classified as "of high interest." The FBI Defen dants were responsible for making these classifications for detainees arrested in the New York City area, in cluding the Plaintiff.

The complaint further alleges that Ashcroft and Mueller approved a policy of holding detainees "of high interest" in highly restrictive conditions until they were "cleared" by the FBI. In early October, BOP Defendant Cooksey, with the knowledge of BOP Defendant Sawyer, directed that all detainees "of high interest" be held in the most restrictive conditions possible. FBI officials were aware that the BOP was relying on this classifica tion to hold detainees in restrictive conditions.

The complaint further alleges that soon after 9/11, the MDC created within the MDC an ADMAX SHU, the BOP's most restrictive type of confinement, to house the detainees "of high interest." The procedures for hand ling ADMAX SHU detainees were developed by MDC staff, at the request of Defendant Hasty. ADMAX SHU detainees were permitted to leave their cells only one hour each day, and all legal and social interactions were non-contact. Movement outside their cells required handcuffs and leg irons and four-officer escorts. Move ment inside their cells was monitored by video cameras. For many weeks, the detainees were subject to a com munications blackout.

The complaint further alleges that the MDC did not conduct any review of the detainees' segregation in the ADMAX SHU. Instead, the detainees remained in the ADMAX SHU until the FBI approved their release to the general population. As a result, numerous detainees were held in the ADMAX SHU for extended periods of time even though there was no evidence linking them to terrorism.

The complaint further alleges that the Plaintiff was transferred to the ADMAX SHU on January 8, 2002. He was kept in solitary confinement. Until March, the lights in his cell were left on almost 24 hours a day, and MDC staff deliberately turned on air conditioning dur ing the winter and heating during the summer. MDC staff left the Plaintiff in the open-air recreation area for hours when it was raining and then turned on the air conditioner when he returned to his cell. Whenever the Plaintiff was removed from his cell, he was handcuffed and shackled. The Plaintiff was not provided with ad equate food and lost 40 pounds while in custody. MDC staff called him, among other things, a "terrorist" and a "Muslim killer."

The complaint further alleges that the Plaintiff was brutally beaten by MDC guards on two occasions: upon his transfer to the ADMAX SHU in January 2002 and again in March. Following the March beating, the Plain tiff was denied medical care for two weeks even though he was in excruciating pain. He was also subjected to daily strip and body-cavity searches. The March beating was prompted by the Plaintiff's protestations to a fourth consecutive strip and body-cavity search in the same room. MDC staff interfered with the Plaintiff's prayers, routinely confiscated his Koran, and refused to permit him to participate in Friday prayer services. They also interfered with the Plaintiff's communications with his defense attorney, for example, by disconnecting the phone if the Plaintiff complained about his conditions of confinement and delaying his receipt of legal mail for up to two months.

The Plaintiff pled guilty on April 22, 2002, and was sentenced on September 17, 2002. He was released from the ADMAX SHU at the end of July 2002, after pleading guilty but before sentencing. Judge Gleeson considered the Plaintiff to be a pretrial detainee throughout his en tire time in the ADMAX SHU. Dist. Ct. op. at *15 n.14. The Plaintiff was released from the MDC on January 15, 2003, and thereafter was removed to Pakistan (a fact not in the complaint but undisputed).

Litigation in the District Court. The Plaintiff (and his co-plaintiff) commenced this action in May 2004. Their complaint asserted twenty-one causes of action, including both statutory claims and constitutional tort claims pursuant to Bivens v. Six Unknown Named Ag ents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). The causes of action, and the Defendants against whom they were asserted, are set forth in the margin.3

Ashcroft and Mueller, the FBI Defendants, the BOP Defendants, Hasty, the MDC Warden, and an MDC medical assistant4 filed motions to dismiss on the grounds that (1) a Bivens action was precluded by "spe cial factors," (2) they were protected by qualified immu nity, (3) the supervisory defendants were not alleged to have sufficient personal involvement, and (4) Ashcroft, Mueller, the FBI Defendants, and the BOP Defendants were not subject to personal jurisdiction in New York. In addition, the United States moved to be substituted as the defendant on the ATCA claim (Count 21) and for dismissal of that claim.

With a few exceptions, Judge Gleeson denied the mo tions to dismiss. He first rejected Ashcroft's argument that "special factors," namely the post-9/11 context, pre cluded a Bivens action in this case. See Dist. Ct. op. at *14. Judge Gleeson then turned to the substance of the Plaintiff's Bivens claims. He denied Hasty's motion to dismiss the conditions of confinement claims (Counts One and Eight), concluding that the Plaintiff had ade quately alleged (1) illegitimate reasons for the condi tions of his confinement and (2) Hasty's personal in volvement. See id. at *15-*17. He also found adequate allegations of Hasty's personal involvement in the claims of excessive force (Counts Three and Four), interference with the Plaintiff's right to counsel (Count Five), unrea sonable strip searches (Count Nine), and interference with the Plaintiff's exercise of religion (Count Ten). See id. at *22, *27, *28. However, he found the allegations insufficient to support the personal involvement of BOP Defendant Sawyer in the unreasonable strip searches and dismissed this claim against her. See id. at *27.

With respect to the procedural due process claim (Count Two), Judge Gleeson found that the Plaintiff had alleged both a deprivation of a liberty interest that in volved "atypical and significant" hardships compared to the conditions in the general prison population and the absence of any due process protections, that the Plain tiff's right was clearly established, and that he could not assess the objective reasonableness of the Defendants' actions as a matter of law at this stage of the litigation. See id. at *18-*20. He also found that the Plaintiff had adequately alleged the personal involvement of all the Defendants, observing that "the post-September 11 con text provide[d] support for [the P]laintiffs' assertions that [the D]efendants were involved in creating and/or implementing the detention policy under which [the P]laintiffs were confined without due process." See id. at *20-*21. Finally, with respect to the procedural due process claim, he limited the first stage of discovery to the issue of the Defendants' personal involvement in the alleged denial of due process. See id. at *21.

With respect to the Plaintiff's Bivens claims of race and religious discrimination (Counts 11 and 12), Judge Gleeson ruled that the Plaintiff's allegations that he was confined in significantly harsher conditions solely be cause of his race and religion were sufficient to state a cause of action. See id. at *29. He also concluded that the Plaintiff had adequately alleged the personal in volvement of Ashcroft and Mueller, the FBI Defendants, and Hasty. See id. However, because the Plaintiff had not alleged that the BOP Defendants were involved in the challenged classification in any way, Judge Gleeson concluded that the Plaintiff had not alleged the personal involvement of the BOP Defendants, and he dismissed these claims against them. See id.

Turning to the Plaintiff's statutory claims, Judge Gleeson dismissed the RFRA claims against all the De fendants, concluding that they were entitled to qualified immunity because it was not clearly established that RFRA applied to federal government officials. See id. at *30-*31. He also dismissed the ATCA claim after first having substituted the United States for the indi vidual defendants. See id. at *34-*35. Finally, he de nied the motions to dismiss the section 1985(3) conspir acy claims, rejecting the Defendants' arguments that it was not clearly established that section 1985 applied to federal officers and concluding that the Plaintiff had adequately alleged the Defendants' personal involve ment, except with respect to the allegation that the BOP Defendants had conspired to subject the Plaintiff to un reasonable strip searches. See id. at *32-*33.

Discussion

The Defendants appeal from the District Court's or der denying their motions to dismiss on the ground of qualified immunity. Their arguments with respect to qualified immunity fall into several broad categories: (1) the Plaintiff's allegations do not allege the violation of a clearly established right, (2) do not allege sufficient personal involvement of the Defendants in the chal lenged actions, (3) are too conclusory to overcome a qualified immunity defense, and (4) the Defendants' ac tions were objectively reasonable. Permeating the De fendants' assertion of a qualified immunity defense is the contention that, however the defense might be adju dicated in normal circumstances, the immediate after math of the 9/11 attack created a context in which the defense must be assessed differently and, from their standpoint, favorably.

In addition, Ashcroft, Mueller, and FBI Defendant Rolince seek review of the denial of their motion to dis miss for lack of personal jurisdiction, arguing that the issue of personal jurisdiction is available for review on this interlocutory appeal because the issue is inextric ably intertwined with that of qualified immunity.

Because many of the Defendants' grounds for assert ing an immunity defense overlap with respect to several of the Plaintiff's allegations, it will be convenient to con sider separately each of the Plaintiff's causes of action with respect to the one or more Defendants against whom it is asserted, rather than consider separately the claims asserted against each Defendant. Before turning to each of the Plaintiff's allegations, we first consider the legal standards that apply to nearly all of the Plain tiff's claims and to most of the grounds on which the De fendants assert their qualified immunity defense.

I. General Principles of Qualified Immunity

(a) Standard of review. When a district court denies qualified immunity on a Rule 12(b)(6) motion to dismiss, "we review the district court's denial de novo, accepting as true the material facts alleged in the complaint and drawing all reasonable inferences in plaintiffs' favor." Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 250 (2d Cir. 2001).

(b) Appealability. A district court's denial of quali fied immunity is appealable as a collateral order if it turns on an issue of law. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). Thus, a defendant may appeal a district court's ruling denying qualified immunity when, if a plaintiff's allega tions are assumed to be true, the only question is whe ther the alleged conduct violated a clearly established right. See Locurto v. Safir, 264 F.3d 154, 163 (2d Cir. 2001).

(c) The qualified immunity defense. Qualified im munity is an immunity from suit and not just a defense to liability. See Saucier v. Katz, 533 U.S. 194, 200, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). The first step in a qualified immunity inquiry is to determine whether the alleged facts demonstrate that a defendant violated a constitutional right. See id. at 201, 121 S. Ct. 2151; see also Scott v. Harris, -U.S.-, 127 S. Ct. 1769, 1774 & n.4, 167 L. Ed. 2d 686 (2007). If the allegations show that a defendant violated a constitutional right, the next step is to determine whether that right was clearly es tablished at the time of the challenged action-that is, "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." See Saucier, 533 U.S. at 202, 121 S. Ct. 2151. A defen dant will be entitled to qualified immunity if either (1) his actions did not violate clearly established law or (2) it was objectively reasonable for him to believe that his actions did not violate clearly established law. See John son, 239 F.3d at 250.

In determining whether a right was clearly estab lished, the court must assess whether "the contours of the right [were] sufficiently clear in the context of the alleged violation such that a reasonable official would understand that what he [was] doing violate[d] that right." Id. at 250-51 (internal quotation marks omitted). To that end, the court should consider what a reasonable officer in the defendant's position would have known about the lawfulness of his conduct, "not what a lawyer would learn or intuit from researching case law." Id. at 251 (internal quotation marks omitted). Furthermore, the court need not identify "legal precedent addressing an identical factual scenario" to conclude that the right is clearly established. Id.; see also Tellier v. Fields, 280 F.3d 69, 84 (2d Cir. 2000) (noting that a law is "clearly established" so long as a ruling on the issue is "clearly foreshadow[ed]" by this Circuit's decisions).

(d) Personal involvement. Many of the Defendants claim qualified immunity on the ground that the Plaintiff has failed to allege their personal involvement in the challenged actions. All of the appealing Defendants are supervisory officials. The personal involvement of a su pervisor may be established by showing that he (1) di rectly participated in the violation, (2) failed to remedy the violation after being informed of it by report or ap peal, (3) created a policy or custom under which the vio lation occurred, (4) was grossly negligent in supervising subordinates who committed the violation, or (5) was deliberately indifferent to the rights of others by failing to act on information that constitutional rights were be ing violated. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (discussing section 1983 liability).

Although a lack of personal involvement may be grounds for dismissing a claim on the merits (a ruling that would not be subject to an interlocutory appeal), such a lack is also relevant to a defense of qualified im munity because it goes to the question of whether a de fendant's actions violated a clearly established right. See McCullough v. Wyandanch Union Free School Dis trict, 187 F.3d 272, 280 (2d Cir. 1999) ("Where there is a total absence of evidence of [a violation], there is no basis on which to conclude that the defendant seeking qualified immunity violated clearly established law." (internal quotation marks omitted)). "[O]ur task is to consider whether, as a matter of law, the factual allega tions and all reasonable inferences therefrom are insuf ficient to establish the required showing of personal in volvement." Johnson, 239 F.3d at 255.

(e) Pleading requirements. The parties dispute the extent to which a plaintiff must plead specific facts to overcome a defense of qualified immunity at the mo tion-to-dismiss stage. Although most of the Defendants disclaim requiring the Plaintiff to meet a heightened pleading standard, beyond the requirement of Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), that a complaint "give the defendant fair notice of what the plaintiff's claim is and the grounds up on which it rests," see Fed. R. Civ. P. 8(a)(2), all the De fendants make the somewhat similar argument that "conclusory allegations" will not suffice to withstand a qualified immunity defense, especially with respect to allegations of supervisory involvement, racial and/ or religious animus, or conspiracy. BOP Defendant Cooksey explicitly urges us to adopt a heightened plead ing standard in Bivens actions.

The pleading standard to overcome a qualified immu nity defense appears to be an unsettled question in this Circuit. Four Supreme Court opinions provide guid ance, although the guidance they provide is not readily harmonized. In Leatherman v. Tarrant County Narcot ics Intelligence and Coordination Unit, 507 U.S. 163, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993), the Court re jected a heightened pleading standard in a civil rights action alleging municipal liability, applying instead only the traditional requirement of "'a short and plain state ment of the claim showing that the pleader is entitled to relief.'" Id. at 168, 113 S. Ct. 1160 (quoting Fed. R. Civ. P. 8(a)(2)). In reaching this conclusion, the Court distin guished between municipalities' immunity from respon deat superior liability and government officials' quali fied immunity from suit. See id. at 166, 113 S. Ct. 1160. Arguably, this distinction could permit requiring a plain tiff to satisfy a heightened pleading standard of a cause of action in order to overcome a government official's defense of qualified immunity. However, the Court's opinion in Leatherman suggests that heightened plead ing standards are never permissible except when autho rized by Rule 9(b) of the Federal Rules of Civil Proce dure. See id. at 168, 113 S. Ct. 1160 (noting that Rule 9(b) "do[es] not include among the enumerated actions any reference to complaints alleging municipal liability under § 1983"). Indeed, the Court observed that, in the absence of amendment to Rules 8 or 9, the courts could rely only on control of discovery and summary judgment to "weed out unmeritorious claims." Id. at 168-69

A more pertinent precedent is Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002), which concerned the adequacy of pleading a Title VII complaint. The Court rejected what had been this Circuit's rule requiring employment discrimination plaintiffs to allege facts constituting a prima facie case of employment discrimination. See id. at 515, 122 S. Ct. 992. The Court again emphasized that the judicially imposed heightened pleading standard conflicted with Rule 8(a) and that a heightened pleading standard could be attained only "by the process of amending the Fed eral Rules, and not by judicial interpretation." Id. (in ternal quotation marks omitted).

Leatherman and especially Swierkiewicz-with their insistence that courts cannot impose heightened plead ing standards in the absence of statutory authoriza tion-indicate that a court cannot impose a heightened pleading standard in Bivens (or other civil rights) ac tions against individual officials, a precept we have heeded since the Supreme Court's decision in Swier kiewicz. See, e.g., Phillip v. University of Rochester, 316 F.3d 291, 298-99 (2d Cir. 2003) (general allegation of racial animus); Phelps v. Kapnolas, 308 F.3d 180, 186-87 (2d Cir. 2002) (general allegation of knowledge).

However, a third Supreme Court case, decided be tween Leatherman and Swierkiewicz, cryptically sug gests that, in some circumstances, a court could require "specific, nonconclusory factual allegations" at the pleading stage in claims against government officials. In Crawford-El v. Britton, 523 U.S. 574, 118 S. Ct. 1584, 140 L. Ed. 2d 759 (1998), the D.C. Circuit had recog nized a heightened burden of proof in cases against gov ernment officials alleging unconstitutional motive. See id. at 582-83, 118 S. Ct. 1584. The Court observed that the D.C. Circuit had adopted the heightened standard in an attempt "to address a potentially serious problem: Because an official's state of mind is easy to allege and hard to disprove, insubstantial claims that turn on im proper intent may be less amenable to summary disposi tion than other types of claims against government offi cials." Id. at 584-85, 118 S. Ct. 1584 (internal quotation marks omitted). Although the Supreme Court recog nized this problem, it rejected the heightened standard of proof.

The Court held that the D.C. Circuit's rule was not compelled by either the holding or the reasoning of Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). In Harlow, the Court had stated that "bare allegations of malice should not suffice to sub ject government officials either to the costs of trial or to the burdens of broad-reaching discovery." Id. at 817-18, 102 S. Ct. 2727. However, as the Court explained in Crawford-El, this statement merely concerned a plain tiff's attempt to overcome a legitimate qualified immu nity defense by alleging malicious intent; this holding was irrelevant to a plaintiff's burden in alleging a consti tutional violation of which improper motive is an essen tial element. See 523 U.S. at 588-89, 118 S. Ct. 1584. Neither did Harlow's reasoning require a heightened burden of proof: the Court observed that there existed other mechanisms for protecting officials from unmeri torious actions, such as the requirement that the offi cials' conduct violate clearly established law, the need to prove causation, and procedural protections. See id. at 590-93, 118 S. Ct. 1584.

The Court acknowledged that the usual pleading standard would sometimes not preclude at least limited discovery to amplify general allegations. The Court ob served that Harlow only "sought to protect officials from the costs of 'broad-reaching' discovery" and that limited discovery is sometimes necessary to adjudicate a qualified immunity defense. See id. at 593 n.14, 118 S. Ct. 584. The Court concluded by observing that "broad discretion" in the discovery process is more "useful and equitable" than categorical rules such as that of the D.C. Circuit. See id. at 601.

What Crawford-El gave civil rights plaintiffs with respect to traditional notice pleading, however, it might have modified by permitting some post-complaint detail ing of a claim. In discussing the procedural mechanisms available to judges in civil rights actions, at least those alleging wrongful motive, the Court observed that, be fore permitting discovery, a court could require a plain tiff to "put forward specific, nonconclusory factual alle gations that establish improper motive causing cogniza ble injury in order to survive a prediscovery motion for dismissal or summary judgment." Id. at 598, 118 S. Ct. 1584 (internal quotation marks omitted). Perhaps sig nificantly, the Court quoted the phrase "put forward specific, nonconclusory factual allegations" from Justice Kennedy's concurring opinion in Siegert v. Gilley, 500 U.S. 226, 111 S. Ct. 789, 114 L. Ed. 2d 277 (1991), in which he had explicitly advocated a heightened pleading standard for civil rights actions requiring a showing of malice. See id. at 235-36, 111 S. Ct. 1789 ("There is ten sion between the rationale of Harlow and the require ment of malice, and it seems to me that the heightened pleading requirement is the most workable means to resolve it.").

The First Circuit has remarked that "[w]hatever window of opportunity [it] thought remained open after Crawford-El has been slammed shut by the Supreme Court's subsequent decision in Swierkiewicz." Educa dores Puertorriqueños en Acción v. Hernandez, 367 F.3d 61, 65 (1st Cir. 2004). Most Circuits appear to have rejected a heightened pleading standard. See Doe v. Cassel, 403 F.3d 986, 988-89 & n.3 (8th Cir. 2005) (col lecting cases); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125 (9th Cir. 2002) (same).

Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, -U.S.-, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). If we were to consider only a narrow view of the holding of that decision, we would not make any adjustment in our view of the applicable pleading standard. Bell Atlantic held that an allegation of parallel conduct by competitors, without more, does not suffice to plead an antitrust violation under 15 U.S.C. § 1. See id. at 1961. The Court required, in addi tion, "enough factual matter (taken as true) to suggest that an agreement was made." Id. at 1965. However, the Court's explanation for its holding indicated that it intended to make some alteration in the regime of pure notice pleading that had prevailed in the federal courts ever since Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), was decided half a century ago. The nature and extent of that alteration is not clear because the Court's explanation contains several, not entirely consistent, signals, which we consider (not necessarily in the order set forth in the Court's opinion).

Some of these signals point toward a new and height ened pleading standard. First, the Court explicitly dis avowed the oft-quoted statement in Conley of "'the ac cepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Bell Atlan tic, 127 S. Ct. at 1968 (quoting Conley, 355 U.S. at 45-46, 78 S. Ct. 99). Bell Atlantic asserted that this "no set of facts" language "has earned its retirement" and "is best forgotten." Id. at 1969

Second, the Court, using a variety of phrases, indi cated that more than notice of a claim is needed to allege a section 1 violation based on competitors' parallel con duct. For example, the Court required "enough factual matter (taken as true) to suggest that an agreement was made," id. at 1965; "enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement," id.; "facts that are suggestive enough to render a § 1 conspiracy plausible," id.; "allegations of parallel conduct . . . placed in a context that raises a suggestion of a preceding agreement," id. at 1966; "alle gations plausibly suggesting (not merely consistent with) agreement," id.; a "plain statement" (as specified in Rule 8(a)(2)) with "enough heft" to show entitlement to relief, id.; and "enough facts to state a claim to relief that is plausible on its face," id. at 1974, and also stated that the line "between the factually neutral and the fac tually suggestive . . . must be crossed to enter the realm of plausible liability," id. at 1966 n.5, and that "the complaint warranted dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible," id. at 1973 n.14.

Third, the Court discounted the ability of "'careful case management,'" "to weed[ ] out early in the discov ery process" "a claim just shy of a plausible entitle ment." Id. at 1967 (quoting id. at 1975 (Stevens, J., dis senting)).

Fourth, the Court encapsulated its various formula tions of what is required into what it labeled "the plausi bility standard." Id. at 1968. Indeed, the Court used the word "plausibility" or an adjectival or adverbial form of the word fifteen times (not counting quotations).

On the other hand, some of the Court's linguistic sig nals point away from a heightened pleading standard and suggest that whatever the Court is requiring in Bell Atlantic might be limited to, or at least applied most rig orously in, the context of either all section 1 allegations or perhaps only those section 1 allegations relying on competitors' parallel conduct. First, the Court explicitly disclaimed that it was "requir[ing] heightened fact plea ding of specifics," id. at 1974, and emphasized the con tinued viability of Swierkiewicz, see id. at 1973-74, which had rejected a heightened pleading standard. See also Erickson v. Pardus, -U.S.-, 127 S. Ct. 2197, 2200, 167 L. Ed. 2d 1081 (2007) (citing Bell Atlantic's citation of Swierkiewicz).

Second, although the Court faulted the plaintiffs' complaint for alleging "merely legal conclusions" of con spiracy, Bell Atlantic, 127 S. Ct. at 1970, it explicitly noted with approval Form 9 of the Federal Civil Rules, Complaint for Negligence, which, with respect to the ground of liability, alleges only that the defendant "neg ligently drove a motor vehicle against plaintiff who was then crossing [an identified] highway," Fed. R. Civ. P. App. Form 9. See Bell Atlantic, 127 S. Ct. at 1970 n.10. The Court noted that Form 9 specifies the particular highway the plaintiff was crossing and the date and time of the accident, see id., but took no notice of the total lack of an allegation of the respects in which the defen dant is alleged to have been negligent, i.e., driving too fast, crossing the center line, running a traffic light or stop sign, or even generally failing to maintain a proper lookout. The adequacy of a generalized allegation of negligence in the approved Form 9 seems to weigh heavily against reading Bell Atlantic to condemn the insufficiency of all legal conclusions in a pleading, as long as the defendant is given notice of the date, time, and place where the legally vulnerable conduct oc curred.

Third, the Court placed heavy emphasis on the "sprawling, costly, and hugely time-consuming" discov ery that would ensue in permitting a bare allegation of an antitrust conspiracy to survive a motion to dismiss, see id. at 1967 n.6, and expressed concern that such dis covery "will push cost-conscious defendants to settle even anemic cases," id. at 1967. These concerns provide some basis for believing that whatever adjustment in pleading standards results from Bell Atlantic is limited to cases where massive discovery is likely to create un acceptable settlement pressures.

Fourth, although the Court expressed doubts about the ability of district courts to "weed[] out" through case management in the discovery process "a claim just shy of a plausible entitlement to relief," id. (emphasis added), the Court did not disclaim its prior statement that "federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeri torious claims sooner rather than later." Leatherman, 507 U.S. at 168-69, 113 S. Ct. 1160 (emphasis added).5 Leaving Leatherman and Crawford-El undisturbed (compared to the explicit disavowal of the "no set of facts" language of Conley) further suggests that Bell Atlantic, or at least its full force, is limited to the anti trust context.

Fifth, just two weeks after issuing its opinion in Bell Atlantic, the Court cited it for the traditional proposi tion that "[s]pecific facts are not necessary [for a plead ing that satisfies Rule 8(a)(2)]"; the statement need only "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson, 127 S. Ct. at 2200 (quoting Bell Atlantic's quotation from Conley) (omission in original).

These conflicting signals create some uncertainty as to the intended scope of the Court's decision.6 We are reluctant to assume that all of the language of Bell At lantic applies only to section 1 allegations based on com petitors' parallel conduct or, slightly more broadly, only to antitrust cases.7 Some of the language relating gen erally to Rule 8 pleading standards seems to be so inte gral to the rationale of the Court's parallel conduct hold ing as to constitute a necessary part of that holding. See Pierre N. Leval, Judging under the Constitution: Dicta about Dicta, 81 N.Y.U. L. Rev. 1249, 1257 (2006) ("The distinction [between holding and dictum] requires recog nition of what was the question before the court upon which the judgment depended, how (and by what rea soning) the court resolved the question, and what role, if any, the proposition played in the reasoning that led to the judgment.").

After careful consideration of the Court's opinion and the conflicting signals from it that we have identified, we believe the Court is not requiring a universal standard of heightened fact pleading, but is instead requiring a flexible "plausibility standard," which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible. We will say more about this ap proach as we apply it below to some of the Plaintiff's specific allegations.

Notwithstanding what we understand to be the es sential message of Bell Atlantic, we acknowledge that we see some merit in the argument in favor of a height ened pleading standard in this case for two reasons. First, qualified immunity is a privilege that is essential to the ability of government officials to carry out their public roles effectively without fear of undue harass ment by litigation. In this respect, the factors favoring a heightened pleading standard to overcome a qualified immunity defense are distinguishable from the purely prudential and policy-driven factors that the Supreme Court found inadequate to justify a heightened pleading standard in the Title VII context. See Swierkiewicz, 534 U.S. at 514-15, 122 S. Ct. 992.

Second, some of the allegations in the Plaintiff's com plaint, although not entirely conclusory, suggest that some of the Plaintiff's claims are based not on facts sup porting the claim but, rather, on generalized allegations of supervisory involvement. Therefore, allowing some of the Plaintiff's claims to survive a motion to dismiss might facilitate the very type of broad-ranging discovery and litigation burdens that the qualified immunity privi lege was intended to prevent.

Nevertheless, although Swierkiewicz was decided in the context of Title VII, we are mindful of the Supreme Court's statement in that decision that heightened pleading requirements "must be obtained by the process of amending the Federal Rules, and not by judicial inter pretation." Id. at 515, 122 S. Ct. 992 (internal quotation marks omitted). Absent any indication from the Su preme Court that qualified immunity might warrant an exception to this general approach and the explicit dis claimer of a heightened pleading standard in Bell Atlan tic, reinforced by the reversal of the Tenth Circuit's use of a heightened pleading standard in Erickson, we con clude that a heightened pleading rule may not be im posed. However, in order to survive a motion to dismiss under the plausibility standard of Bell Atlantic, a con clusory allegation concerning some elements of a plain tiff's claims might need to be fleshed out by a plaintiff's response to a defendant's motion for a more definite statement. See Fed. R. Civ. P. 12(e). In addition, even though a complaint survives a motion to dismiss, a dis trict court, while mindful of the need to vindicate the purpose of the qualified immunity defense by dismissing non-meritorious claims against public officials at an early stage of litigation, may nonetheless consider exer cising its discretion to permit some limited and tightly controlled reciprocal discovery so that a defendant may probe for amplification of a plaintiff's claims and a plain tiff may probe such matters as a defendant's knowledge of relevant facts and personal involvement in challenged conduct. In a case such as this where some of the defen dants are current or former senior officials of the Gov ernment, against whom broad-ranging allegations of knowledge and personal involvement are easily made, a district court might wish to structure such limited dis covery by examining written responses to interrogato ries and requests to admit before authorizing deposi tions, and by deferring discovery directed to high-level officials until discovery of front-line officials has been completed and has demonstrated the need for discovery higher up the ranks. If discovery directed to current or former senior officials becomes warranted, a district court might also consider making all such discovery sub ject to prior court approval.

We note that Rule 8(a)'s liberal pleading require ment, when applied mechanically without countervailing discovery safeguards, threatens to create a dilemma between adhering to the Federal Rules and abiding by the principle that qualified immunity is an immunity from suit as well as from liability. Therefore, we empha size that, as the claims surviving this ruling are litigated on remand, the District Court not only may, but "must exercise its discretion in a way that protects the sub stance of the qualified immunity defense . . . so that officials [or former officials] are not subjected to unnec essary and burdensome discovery or trial proceedings." Crawford-El, 523 U.S. at 597-98, 118 S. Ct. 1584 (empha sis added). In addition, the District Court should pro vide ample opportunity for the Defendants to seek sum mary judgment if, after carefully targeted discovery, the evidence indicates that certain of the Defendants were not sufficiently involved in the alleged violations to sup port a finding of personal liability, or that no constitu tional violation took place. See Harlow, 457 U.S. at 821, 102 S. Ct. 2727 (Brennan, J., concurring) ("[S]ummary judgment will also be readily available whenever the plaintiff cannot prove, as a threshold matter, that a vio lation of his constitutional rights actually occurred."). We give these matters additional consideration below with respect to particular claims.

(f) The post-9/11 context. Several Defendants con tend that even if the Plaintiff's complaint would survive a motion to dismiss in the face of a qualified immunity defense under normal circumstances, the post-9/11 con text requires a different outcome. This argument is ad vanced on three fronts. First, some Defendants contend that the Government was entitled to take certain actions that might not have been lawful before 9/11 because the Government's interests assumed special weight in the post-9/11 context. Second, some Defendants contend that, even if the law was clearly established as to the existence of a right claimed to have been violated, it was not clearly established in the extraordinary circum stances of the 9/11 attack and its aftermath. Third, some Defendants contend that the post-9/11 context ren ders their actions objectively reasonable, an argument we do not reach in view of our disposition of their second contention.

We fully recognize the gravity of the situation that confronted investigative officials of the United States as a consequence of the 9/11 attack. We also recognize that some forms of governmental action are permitted in emergency situations that would exceed constitutional limits in normal times. See Home Building & Loan As sociation v. Blaisdell, 290 U.S. 398, 425-26, 54 S. Ct. 231, 78 L. Ed. 413 (1934) ("While emergency does not create power, emergency may furnish the occasion for the exer cise of power."). But most of the rights that the Plaintiff contends 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 constitutional rights de rives from the steadfast protection of those rights in both normal and unusual times.

With some rights, for example, the right to be free from unreasonable searches, the existence of exigent circumstances might justify governmental action that would not otherwise be permitted. See, e.g., Michigan v. Tyler, 436 U.S. 499, 509, 98 S. Ct. 1942, 56 L. Ed. 2d 486 (1978) (exigent circumstances permitted warrantless entry into home). But, as we discuss below, see Part VI, the exigent circumstances of the post-9/11 context do not diminish the Plaintiff's right not to be needlessly ha rassed and mistreated in the confines of a prison cell by repeated strip and body-cavity searches. This and other rights, such as the right to be free from use of excessive force and not to be subjected to ethnic or religious dis crimination, were all clearly established prior to 9/11, and they remained clearly established even in the after math of that horrific event. To whatever extent exigent circumstances might affect the lawfulness of the Defen dants' actions or might have justified an objectively rea sonable belief that their actions did not violate clearly established law, we consider the argument in connection with a particular claim.

With these general principles in mind, we turn to the Plaintiff's specific claims.

II. Procedural Due Process

The Plaintiff alleges that Ashcroft and Mueller, the FBI Defendants, the BOP Defendants, and Hasty adopted a policy under which he was deprived of a lib erty interest without any of the procedural protections required by due process of law. His allegation of the deprivation of a liberty interest, even while lawfully con fined without bail on criminal charges, is based on his placement in solitary confinement, where he was sub jected to needlessly harsh restrictions that were atypical and significant when compared to those in the rest of the MDC population. The Defendants contend that (1) the Plaintiff did not allege that the confinement was puni tive; (2) no procedural due process right was violated because the Plaintiff did not have a liberty interest in avoiding extended confinement in the ADMAX SHU and, even if he did, he received all the process that was due; (3) even if the Plaintiff's procedural due process right was violated, the contours of this right were not clearly established at the time of the events in question; (4) the Defendants' actions were objectively reasonable in the post-9/11 context; and (5) the Plaintiff has failed to allege personal involvement.

We are required by the Supreme Court's decision in Saucier to assess these arguments within a two-part framework, asking first whether the alleged facts show a violation of a constitutional right, see Saucier, 533 U.S. at 201, 121 S. Ct. 2151, and, if so, "whether the right was clearly established . . . in light of the specific context of the case," see id. The first, second, and fifth of the Defendants' arguments bear on the initial issue of whether a violation has been alleged; the third argu ment-whether the right was clearly established-is pre cisely the second issue under Saucier; and the fourth argument is often a further component of a qualified immunity defense because even if the law was clearly established, it might have been objectively reasonable, on the facts of a particular case, for a defendant to be lieve that the actions taken did not violate that estab lished law, see Johnson, 239 F.3d at 250.

(a) Has a Violation of a Procedural Due Process Right Been Adequately Pleaded?

In assessing the adequacy of the Plaintiff's pleading of a procedural due process violation we first consider the basic question of whether the Plaintiff has pleaded the existence of a liberty interest and entitlement to procedures that were not provided and then consider the Defendants' arguments that punitive intent and personal involvement were not adequately pleaded.

(i) The Plaintiff's procedural due process right. In concluding that the Plaintiff had a protected liberty in terest, Judge Gleeson relied on this Court's decision in Tellier v. Fields, 280 F.3d 69 (2d Cir. 2000). See Dist. Ct. op. at *17-*18. In Tellier, a federal inmate allegedly was placed in administrative detention in the SHU for more than 500 days without being informed of the rea sons for his placement or receiving any hearings. See 280 F.3d at 74. The regulations governing administra tive segregation, 28 C.F.R. § 541.22, entitle inmates to "an administrative detention order detailing the reasons for placing an inmate in administrative detention . . . provided institutional security is not compromised thereby." 28 C.F.R. § 541.22(b). Moreover, the regula tions require a Segregation Review Officer to "hold a hearing and formally review the status of each inmate who spends seven continuous days in administrative de tention, and thereafter . . . hold a hearing and review these cases formally at least every 30 days." Id. § 541.22(c)(1). The regulations specifically provide that administrative detention "is to be used only for short periods of time except . . . where there are exceptional circumstances, ordinarily tied to security or complex investigative concerns." Id.

In assessing whether a prisoner had a protected lib erty interest in avoiding administrative segregation, Tellier looked to Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995), in which the Supreme Court held that state-created liberty interests of prison ers were limited to freedom from restraint that "im poses atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 483-84, 115 S. Ct. 2293. Since Sandin, the rule in this Circuit has been that a prisoner has a protected liberty interest "'only if the deprivation . . . is atypical and significant and the state has created the liberty interest by statute or regulation.'" Tellier, 280 F.3d at 80 (quot ing Sealey v. Giltner, 116 F.3d 47, 52 (2d Cir. 1997)) (omission in original); see also Palmer v. Richards, 364 F.3d 60, 64 & n.2 (2d Cir. 2004).

Numerous cases in this Circuit have discussed the "atypical and significant hardship" prong of Sandin. Relevant factors include both the conditions of segrega tion and its duration. See Palmer, 364 F.3d at 64. Seg regation of longer than 305 days in standard SHU condi tions is sufficiently atypical to require procedural due process protection under Sandin. See id. at 65 (cit- ing Colon v. Howard, 215 F.3d 227, 231 (2d Cir. 2000)). When confinement is of an intermediate duration-be tween 101 and 305 days-"'development of a detailed record' of the conditions of the confinement relative to ordinary prison conditions is required." Id. at 64-65 (quoting Colon, 215 F.3d at 232).

Applying these standards, Tellier first observed that the prisoner had alleged confinement of more than 500 days "under conditions that differ markedly from those in the general population," finding this sufficient to al lege "atypical and significant" hardships. 280 F.3d at 80. Turning to the language of the regulations, the Court agreed that because the initial decision to place a prisoner in administrative detention is a discretionary one, the plaintiff did not have a "protected liberty inter est that is violated when the Warden removes him or her from the general population." Id. at 82. However, the Court found, the regulations constrain the warden's dis cretion in maintaining a prisoner in detention and the procedures "are designed to ensure that a prisoner is kept in SHU for no longer than is necessary." Id. at 82-83. Accordingly, the Court concluded that section 541.22 "creates a protectable liberty interest when an official's failure to adhere to the [regulation] results in an atypical, significant deprivation." Id. at 83 (internal quotation marks omitted).

Relying on Tellier, Judge Gleeson concluded that the Plaintiff had a clearly established protectable liberty interest in avoiding continued detention in the ADMAX SHU. See Dist. Ct. op. at *18. On appeal, the Defen dants contend that Tellier is no longer good law in light of the Supreme Court's recent opinion in Wilkinson v. Austin, 545 U.S. 209, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005). In Wilkinson, the Supreme Court considered Sandin's application to segregation in Ohio's Supermax facility. Inmates in the Supermax facility were detained in solitary confinement indefinitely, they remained in their cells 23 hours a day, the lights were turned on con stantly, they could not go outside for recreation, and they were limited to non-contact visits. See id. at 214-15, 125 S. Ct. 2384. The Court confirmed Sandin's holding that "a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in Sandin," id. at 222, 125 S. Ct. 2384, but ob served that "the touchstone of the inquiry into the exis tence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves in relation to the ordinary incidents of prison life," id. at 223, 125 S. Ct. 2384 (internal quotation marks omitted). The Court recognized that the courts of appeals had strug gled to identify a baseline for determining what consti tutes an atypical and significant hardship, but it con cluded that confinement in the Supermax facility "im poses an atypical and significant hardship under any plausible baseline." Id. Having found that the prisoner had a protected liberty interest, the Court concluded that Ohio's "informal, nonadversary procedures" were sufficient to satisfy due process requirements. Id. at 228-29, 125 S. Ct. 2384.

The Defendants argue that Wilkinson abrogates Tellier or that it at least renders the relevant standard unclear because it instructs courts to consider the na ture of the conditions, not the requirements of the regu lations. We disagree for two reasons. First, while Wilkinson instructs courts to focus on the nature of the conditions, it nonetheless explains that the "liberty in terest in avoiding particular conditions of confinement . . . arise[s] from state policies or regulations." Id. at 222, 125 S. Ct. 2384. Following Tellier, Judge Gleeson looked to the duration and conditions of confinement, as instructed by Wilkinson. See Dist. Ct. op. at *18.

Second, and more significantly, for at least half (if not all) of the Plaintiff's confinement in the ADMAX SHU, he was a pretrial detainee, not a convicted pris oner.8 This Court has said that Sandin does not apply to pretrial detainees and that, accordingly, pretrial de tainees need not show that an imposed restraint imposes atypical and significant hardships to state deprivation of a liberty interest protected by procedural due process. See Benjamin v. Fraser, 264 F.3d 175, 188-89 (2d Cir. 2001) ("Benjamin I"). In Benjamin I, this Court af firmed the district court's ruling that the imposition of painful physical restraints during the movement of pre trial detainees required "reasonable after-the-fact pro cedural protections to ensure that such restrictions on liberty [would] be terminated reasonably soon if they [had] no justification." Id. at 188.

In sum, Wilkinson does not affect the validity of Judge Gleeson's ruling that the Plaintiff had a protected liberty interest because (1) he considered the Plaintiff's allegations of atypical and significant hardships and (2) the Wilkinson and Sandin analysis does not apply to the interval of the Plaintiff's pretrial detention. Under this Court's case law, the Plaintiff's confinement of more than six months fell in the intermediate range, thereby requiring inquiry into the conditions of his confinement, which he sufficiently alleges to have been severe. Even under Wilkinson, the conditions under which the Plain tiff alleges that he was confined-solitary confinement, repeated strip and body-cavity searches, beatings, expo sure to excessive heat and cold, very limited exercise, and almost constant lighting-as well as the initially indefinite duration of confinement could be found to con stitute atypical and significant hardships. See 545 U.S. at 223-24, 125 S. Ct. 2384. The Plaintiff has alleged a protected liberty interest in avoiding more than six months' detention in the ADMAX SHU, especially in light of his status as a pretrial detainee.

The Defendants also dispute the violation of a proce dural due process right by arguing that, even if the Plaintiff had a protected liberty interest in avoiding ex tended detention in the ADMAX SHU, he received all the process that was due by virtue of the FBI's review. This argument is unavailing at this preliminary stage of the litigation. In Wilkinson, the Supreme Court applied the familiar balancing test of Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), to deter mine whether the plaintiff received adequate procedural protections. See 545 U.S. at 224-25, 125 S. Ct. 2384. Under the second prong of this test, the Court observed that inmates received "notice of the factual basis leading to consideration for OSP placement and a fair opportu nity for rebuttal," stating that "these are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations." Id. at 225-26, 125 S. Ct. 2384. After weighing all the relevant factors, the Court found that "[w]here the inquiry draws more on the experience of prison administrators, and where the State's interest implicates the safety of other inmates and prison personnel, . . . informal, nonadversary pro cedures" were sufficient. Id. at 228-29, 125 S. Ct. 2384. In the pending case, the Plaintiff alleges that he did not even receive notice of the factual grounds on which he was being detained in the ADMAX SHU nor did he have any opportunity for rebuttal.

We recognize that in the post-9/11 context the third Mathews factor-the gravity of the Government's in terest-is appropriately accorded more weight than would otherwise be warranted. It might be that the combination of (1) the Plaintiff's interest in avoiding confinement under harsh conditions, (2) the risk of an erroneous determination of the need for such confine ment, and (3) the Government's interest, accorded added weight in the post-9/11 context, would, on balance, lead to the conclusion that the Government need not have given the Plaintiff notice and a chance for rebuttal be fore placing him in the ADMAX SHU. However, once it became clear that the Plaintiff was going to be confined in the ADMAX SHU for an extended period of time, some process was required. We cannot say in the ab sence of a developed factual record whether the FBI's clearance procedure comported with the requirements of the Due Process Clause as interpreted in Mathews and subsequent cases. The sparse record thus far devel oped provides no indication as to what security-related steps the Defendants were taking that might justify pro longed confinement. Nor does that record indicate in what respect providing the Plaintiff with some notice of the basis for his separation in the ADMAX SHU and affording some opportunity for rebuttal would have im paired national security interests or legitimate penologi cal interests of the Government. The Government has not as yet had an opportunity to refute the Plaintiff's allegation that there was no evidence connecting him to terrorism. Accordingly, we cannot say whether the Gov ernment's national security interests rendered the clear ance procedure sufficient to satisfy procedural due pro cess requirements or whether more traditional proce dural protections were required. Nevertheless, because we are required at this stage of the litigation to accept all of the Plaintiff's allegations as true and draw all rea sonable inferences in his favor, we cannot say that the Plaintiff has failed to plead a viable claim under the pro cedural component of the Due Process Clause. Judge Gleeson dismissed the Plaintiff's procedural due process claim with respect to the initial confinement in the ADMAX SHU, Dist. Ct. op. at *17 n.18, but properly ruled that the Plaintiff had stated a procedural due pro cess claim with respect to his continued confinement, see id. at *18-*19.

(ii) Punitive intent. Ashcroft, Mueller, and Hasty, citing Bell v. Wolfish, 441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979), contend that the Plaintiff has not stated a claim that the confinement in the ADMAX SHU violated his procedural due process rights because he has not alleged that the confinement was punitive. Pre liminarily, we note that the complaint alleges that the Defendants designed a policy under which the Plaintiff was "arbitrarily designated to be confined in the ADMAX SHU" and that "[k]eeping Plaintiff[ ] in isola tion . . . amounted to the willful, malicious, and unnec essary infliction of pain and suffering." This is sufficient to allege that the confinement was punitive in nature.

More fundamentally, however, we deem unsup portable the Defendants' premise that the Plaintiff's procedural due process claim requires an allegation of punitive intent. Defendants Ashcroft and Mueller cite Wolfish, 441 U.S. at 535, 99 S. Ct. 1861, for the proposi tion that "in evaluating the constitutionality of condi tions or restrictions of pretrial detention, the proper inquiry under the Due Process Clause is whether the conditions 'amount to punishment of the detainee.'" However, Wolfish did not involve a claim that inade quate procedures had been used to impose challenged conditions of confinement. The claim there was that the challenged conditions of confinement, being punitive, could not be imposed on pretrial detainees at all because they had not been convicted. Although the Court did not consider the challenged conditions punitive, it ruled that "under the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." Id. This ruling implements the substantive component of the Due Process Clause.9

By contrast, the relevant line of authority for the Plaintiff's procedural due process claim begins with Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963, 41 L. Ed. 2d 935 (1974), and continues through Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), and Sandin, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418. Wolff outlined fairly extensive procedures that must be observed before a prisoner's liberty inter est in retaining good time credits could be impaired be cause of disciplinary violations. 418 U.S. at 563-72, 94 S. Ct. 2963. Helms required only notice of charges and an opportunity to rebut in order to place a prisoner in administrative segregation pending an investigation of misconduct charges. 459 U.S. at 476, 103 S. Ct. 864. Sandin modified Helms by making the existence of a prisoner's liberty interest turn primarily on the atypical nature of the challenged conditions of confinement, 515 U.S. at 483-87, 115 S. Ct. 2293, but did not alter the ba sic requirement that where a prisoner's liberty interest exists, its impairment requires some procedural prote ctions.

The Plaintiff's liberty interest, based primarily on a federal regulation, is entitled to some procedural protec tion regardless of punitive intent. To the extent that the interest derives directly from the Due Process Clause (and hence requires procedural protection only when punishment is imposed, see Wolfish, 441 U.S. at 535, 99 S. Ct. 1861), the harsh conditions set forth in the com plaint adequately meet the criteria for punishment, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S. Ct. 554, 9 L. Ed. 2d 644 (1963), whether or not such conditions were imposed with punitive intent.

(iii) Lack of personal involvement. Defendants Ash croft and Mueller contend that the Plaintiff has not ade quately alleged their personal involvement in the denial of procedural due process because the continued deten tion decision was made by FBI subordinates. Applying the standards applicable to personal involvement out lined above, we reject this claim at this stage of the liti gation. Ashcroft and Mueller are alleged to have con doned the policy under which the Plaintiff was held in harsh conditions of confinement until "cleared" by the FBI. Since the complaint adequately alleges, for pur poses of a motion to dismiss, that procedural due pro cess required some procedures beyond FBI clearance, the allegation of condoning the policy of holding the Plaintiff in the ADMAX SHU until cleared suffices, at the pleading stage, to defeat dismissal for lack of per sonal involvement.

At the other end of the leadership chain, Defendant Hasty asserts his lack of personal involvement because the continued detention decision was made far above his level of responsibility. But this defense also cannot pre vail at this stage of the litigation. Cf. Anthony v. Ci