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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, ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, PETITIONERS

v.

JAVAID IQBAL, ET AL.

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

REPLY BRIEF FOR PETITIONERS

GREGORY G. GARRE
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

No. 07-1015

JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL
OF THE UNITED STATES, ROBERT MUELLER, DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, PETITIONERS

v.

JAVAID IQBAL, ET AL.

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

REPLY BRIEF FOR PETITIONERS

The court of appeals sustained the denial of petitioners' motion to dismiss on the ground of qualified immunity and thus held that the former Attorney General of the United States and current Director of the Federal Bureau of In vestigation may be subjected to discovery and potentially a trial based on highly generalized and conclusory allega tions that those high-ranking officials knew about, ap proved of, or condoned wrongs allegedly committed by fed eral officers much lower down on the bureaucratic chain of command. The court of appeals was unanimous in express ing reservation about that result. See Pet. App. 25a-27a. Judge Cabranes went further. He not only urged this Court to review its decisions in this area "at the earliest opportunity," but observed that the court of appeals' decision would supply a "blueprint" for "plaintiffs claiming to be aggrieved by national security programs and policies" to subject "officials charged with protecting our nation from future attacks to submit to prolonged and vexatious discov ery processes." Id. at 69a-70a (concurring opinion).

In his merits brief, respondent seems most interested in avoiding review of the important questions presented by this case. First, respondent implausibly asserts (Br. 1) that "[t]he issues presented by this case have no connection to qualified immunity." But as the Second Circuit correctly noted at the outset of its decision, this case raises "several issues concerning the defense of qualified immunity in the aftermath of the events of 9/11," Pet. App. 2a, and the deci sion before this Court squarely addresses those important qualified-immunity issues. Second, respondent makes his lead argument not a defense of the decision below, but the contention (Br. 12-21) that there is no appellate jurisdiction to review the questions presented at all. But it is estab lished that an order denying qualified immunity is "imme diately appealable" when it turns on an "issue of law," Beh rens v. Pelletier, 516 U.S. 299, 311 (1996), and sufficiency of the pleadings is a quintessential question of law. And third, respondent simply refuses to address the supervisory-lia bility question because he insists (Br. 12-13) that-for the same reasons he unsuccessfully advanced at the certiorari stage (Br. in Opp. 10, 28)-the Court should have denied certiorari on that question. But litigants do not get to de cide what questions are properly presented-the Court does. And the court of appeals' application of a now undis putedly incorrect legal standard with respect to the super visory liability of high-ranking officials under Bivens alone requires vacatur of the decision below.

In actually addressing the first question presented, re spondent refuses to give effect to this Court's longstanding precedent requiring a "firm application" of the Federal Rules of Civil Procedure in considering motions to dismiss on the ground of qualified immunity. Butz v. Economou, 438 U.S. 478, 508 (1978). And respondent urges this Court not only essentially to disregard-or even undo-its most recent explication of the notice pleading standards imposed by the Federal Rules, but to conclude that petitioners- government officials who indisputably enjoy qualified im munity from suit-are entitled to less notice and protection from meritless claims at the pleading stage than routine civil defendants in an antitrust conspiracy case. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955 (2007). That effort is unavailing. A proper application of this Court's prece dents before Bell Atlantic and the Federal Rules should have resulted in the dismissal of the claims against peti tioner, but Bell Atlantic nevertheless underscores that the claims against petitioners must be dismissed because the bare and conclusory allegations at issue do not remotely cross "the line between possibility and plausibility of 'enti tle[ment] to relief.'" Id. at 1966.

To hold that petitioners are entitled to qualified immu nity because the allegations against them are legally insuffi cient, the Court need only faithfully apply its existing pre cedents; it need not, as respondent repeatedly suggests (Br. 10, 23-25, 31, 34, 36, 39, 44), adopt a heightened pleading standard. Nevertheless, as Judge Cabranes stressed, and the amici former Attorneys General and Director of the FBI have echoed, a proper application of the Federal Rules is especially important when it comes to the types of claims at issue, given the strong "national interest in enabling Cabinet officers with responsibilities in [the national secu rity] area to perform their sensitive duties with decisive ness and without potentially ruinous hesitation." Pet. App. 70a (quoting Mitchell v. Forsyth, 472 U.S. 511, 541 (1985) (Stevens, J., concurring in judgment)); see Barr Amicus Br. 6, 11-12, 15. The court of appeals' decision seriously threat ens that vital "national interest" and should be reversed.

A. The District Court's Order Denying Petitioners' Motion To Dismiss On Qualified-Immunity Grounds Is Appealable

At the outset, respondent argues (Br. 13-21) that there is generally no appellate jurisdiction to review a district court decision denying a motion to dismiss on qualified-im munity grounds when the issue on appeal involves the suffi ciency of the pleadings. That argument should be rejected.

It is settled that "an order denying qualified immunity, to the extent it turns on an 'issue of law,' * * * is immedi ately appealable." Behrens, 516 U.S. at 311 (quoting Mitch ell, 472 U.S. at 530). The sufficiency of the pleadings to state a claim for relief is a paradigmatic question of law. Moreover, the fundamental reason for permitting interlocu tory appeals in this context is that qualified immunity pro tects public officials from unwarranted litigation demands by providing "an immunity from suit rather than a mere defense to liability"-an immunity that is "effectively lost if a case is erroneously permitted to go to trial." Mitchell, 472 U.S. at 526; see Pet. Br. 17. Claims that do not even satisfy threshold pleading requirements are among those that most warrant prompt dismissal.

Respondent appears to argue (e.g., Br. 14-17) that the only qualified-immunity questions that are immediately appealable are those that relate narrowly to the abstract legal question whether an asserted right was clearly estab lished at the relevant time, because only that question is completely separable from the underlying merits of a suit. But that position cannot be reconciled with this Court's decisions, which routinely assert interlocutory jurisdiction in qualified-immunity cases to consider matters that over lap with the merits of a plaintiff's claims.

In Hartman v. Moore, 547 U.S. 250 (2006), for example, the Court determined that matters the plaintiff "must plead and prove in order to win" (there, the existence of probable cause) were "directly implicated by the defense of qualified immunity and properly before [the Court] on interlocutory appeal." Id. at 257 n.5. The Court later explained in Wilkie v. Robbins, 127 S. Ct. 2588 (2007), that "the same reasoning applies to the recognition of the entire cause of action." Id. at 2597 n.4. Similarly, Siegert v. Gilley, 500 U.S. 226 (1991), observed that "[a] necessary concomitant to the determina tion of whether the constitutional right asserted by a plain tiff is 'clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Id. at 232 (em phasis added); see Scott v. Harris, 127 S. Ct. 1769, 1773 n.2 (2007).

Respondent's contention (Br. 14-15) that Mitchell and Behrens require a narrower focus is wrong. Indeed, Beh rens explained that Mitchell "held" that "a district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is [immediately] appealable." 516 U.S. at 306 (quoting Mitchell, 472 U.S. at 530); accord id. at 311. While respondent asserts (Br. 15) that Mitchell never discussed "the sufficiency of the pleadings in that case," the Mitchell Court upheld qualified immunity after determin ing that the question properly before it was "whether the facts alleged * * * support a claim of violation of clearly established law." 472 U.S. at 528 n.9 (emphasis added). Mitchell further explained that "immunity is separate from the merits of the underlying action for purposes of the [collateral-order doctrine] even though a reviewing court must consider the plaintiff's factual allegations in resolv ing the immunity issue." Id. at 528-529 (emphasis added). And Behrens likewise explained that, because the "denial of a motion to dismiss is conclusive as to th[e] right" "to avoid the burdens of 'such pretrial matters as discovery,'" it is appealable to the extent that it turns on a question of law. 516 U.S. at 308 (quoting Mitchell, 472 U.S. at 526).

Respondent points to (Br. 14) a passage in Mitchell stat ing that "[a]n appellate court reviewing the denial of the de fendant's claim of immunity need not * * * determine whether the plaintiff's allegations actually state a claim." 472 U.S. at 528. When read in the context of the surround ing analysis, discussed above, that passage does not bear the weight respondent places on it. And, in any event, in subse quent cases like Hartman, Wilkie, and Siegert, this Court has asserted interlocutory jurisdiction to determine the le gal sufficiency of a complaint's allegations.

Respondent's argument against jurisdiction is ultimately based on a misguided attempt to conflate a ruling concern ing the sufficiency of the evidence at the summary-judgment stage (which is not appealable under Johnson v. Jones, 515 U.S. 304 (1995)) with a ruling concerning the sufficiency of the pleadings at the motion-to-dismiss stage (which is appli cable in this context). The concern in Johnson, however, was not with "sufficiency" in the abstract, but with specific characteristics associated with a determination of the suffi ciency of pre-trial evidence. See id. at 316-317; Behrens, 516 U.S. at 313 (explaining that Johnson addressed only factual, not legal, sufficiency). Here, by contrast, a motion to dismiss for failure to state a claim sufficient to overcome qualified immunity involves a purely legal issue that appel late courts are institutionally suited to decide, and the re cord on the question cannot improve as the lawsuit pro gresses, because the pleading question will continue to turn on the content of the complaint itself.

As the court of appeals recognized, this case presents a question about the "pleading standard to overcome a quali fied immunity defense." Pet. App. 15a. In light of "the im portance of resolving immunity questions at the earliest possible stage in litigation," Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam), this Court should decide that purely legal question on this interlocutory appeal.

B. Respondent Has Failed To Allege Facts Sufficient To Over come Petitioners' Assertion Of Qualified Immunity

1. A plaintiff's conclusory allegations cannot negate the qualified immunity of high-ranking government officials

It is well settled that conclusory allegations are insuffi cient to defeat a motion to dismiss. Instead, as this Court recently emphasized, a complaint must contain "allegations plausibly suggesting" actionable conduct. Bell Atl. Corp., 127 S. Ct. at 1966. To satisfy that standard, a complaint must contain sufficient "factual matter" to "raise a right to relief above the speculative level" and to "raise a reasonable expectation that discovery will reveal evidence of" illegal activity. Id. at 1965. Moreover, "factually neutral" allega tions-i.e., allegations that are consistent with lawful be havior-are inadequate to defeat a motion to dismiss. Id. at 1966 n.5. A proper application of that rule is especially criti cal in cases involving high-ranking government officials' qualified immunity. Otherwise, conclusory allegations could negate the immunity and produce all of the consequences that qualified immunity is supposed to prevent-conse- quences that could be particularly grave in cases involving national security. See Pet. Br. 16-21.

a. Respondent contends (Br. 37) that qualified immu nity is wholly irrelevant here because the application of pleading standards should not vary depending on the iden tity of the defendant or the nature of the claims. It is impos sible, however, to determine whether particular allegations are factually suggestive of illegal conduct without consider ing the legal and factual context of a suit. Thus, the ade quacy of the allegations in a complaint must be evaluated in the context of the type of claim it raises.

Bell Atlantic therefore recognized that allegations going to the existence of an antitrust conspiracy must be consid ered in the context of substantive antitrust law. See 127 S. Ct. at 1964. Indeed, this Court held that allegations of an antitrust conspiracy that relied entirely on the existence of parallel business conduct were insufficient to state a claim because "common economic experience" showed that there could be legitimate reasons for parallel conduct. Id. at 1971.

Respondent suggests (Br. 37-38) that Bell Atlantic's discussion of the plausibility threshold was limited to the context of an "antitrust conspiracy claim." But as the Court's blanket disavowal of the "no set of facts" rule under scores, the Court's discussion of pleading standards was not confined to antitrust-conspiracy claims. See 127 S. Ct. at 1968-1970. At the same time, however, Bell Atlantic teaches that a court must consider substantive law and context when determining whether a particular complaint meets Rule 8(a)(2) of the Federal Rules. See Phillips v. County of Alle gheny, 515 F.3d 224, 232 (3d Cir. 2008) (recognizing that "[f]air notice under Rule 8(a)(2) depends on the type of case"); see also Pet. Br. 27.

Just as substantive antitrust law was relevant to eval uating the allegations in Bell Atlantic, so too is substantive qualified-immunity doctrine, including the standard for su pervisory liability, relevant to evaluating complaints against government officials. As demonstrated in petitioners' open ing brief (Pet. Br. 17-19), the Court has set forth a number of substantive rules relating to qualified immunity that are relevant here, including that qualified immunity protects government officials not simply from the burdens of stand ing trial but also from "the burdens of 'such pretrial matters as discovery.'" Behrens, 516 U.S. at 308 (quoting Mitchell, 472 U.S. at 526). This Court has thus insisted on a "firm application" of the Federal Rules of Civil Procedure in con sidering motions to dismiss on the ground of qualified immu nity. Butz, 438 U.S. at 508.

Such a "firm application" of the Federal Rules means that a Court "must exercise its discretion in a way that pro tects the substance of the qualified immunity defense * * * so that officials are not subjected to unnecessary and bur densome discovery or trial proceedings." Crawford-El v. Britton, 523 U.S. 574, 597-598 (1998). Among the discretion ary measures a court must employ is "insist[ing] that the plaintiff 'put forward specific, nonconclusory factual allega tions' that establish * * * cognizable injury in order to sur vive a prediscovery motion for dismissal or summary judg ment." Id. at 598 (quoting Siegert, 500 U.S. at 236 (Ken nedy, J., concurring in judgment)).

Respondent argues (Br. 35) that this Court's admonition that trial courts should require plaintiffs to "put forward specific, nonconclusory factual allegations that establish * * * cognizable injury in order to survive a prediscovery motion for dismissal or summary judgment" (Crawford-El, 523 U.S. at 598 (quotation marks omitted)) was limited to the particular remedy of granting a motion for a more defi nite statement under Rule 12(e). But the Federal Rules also provide another obvious remedy for a deficient complaint: dismissal under Rule 12(b)(6) based on failure to meet the pleading standards of Rule 8(a)(2) in light of a qualified-im munity defense asserted in a motion to dismiss. See Jones v. Bock, 549 U.S. 199, 215-216 (2007) (recognizing that a defense can be a basis for dismissal for failure to state a claim). To the extent that respondent believed he could de feat the motion to dismiss by providing more detailed allega tions, he could have sought leave to amend his complaint under Rule 15(a)(2), but he has not done so, and the allega tions as to petitioners that are in his complaint are legally deficient.

Respondent's claims arise from an investigation launched immediately after the September 11 attacks that was unprecedented in size. "Within 3 days, more than 4,000 FBI Special Agents and 3,000 support personnel were as signed to work on the investigation," and "[b]y September 18, 2001, the FBI had received more than 96,000 leads from the public." Pet. App. 76a n.4. In ordinary times, the Attor ney General and Director of the FBI are not personally in volved in the operational decisions made by officers much lower down on the bureaucratic chain of command; the size of the September 11 investigation made such detailed in volvement all the more infeasible. Especially given that context, it is not enough simply to allege conclusorily that the Attorney General or the FBI Director "knew of" or "condoned" (id. at 172a (Compl. ¶ 96)) particular acts by their subordinates, because such a claim requires additional subsidiary facts to move the complaint from being merely possible to being plausible. Bell Atl. Corp., 127 S. Ct. at 1966. See Barr Amicus Br. 15-16 (explaining that this sce nario is not plausible on the facts alleged).

Similarly, any claim that an official created a discrimina tory policy must be based on factual allegations that suggest the existence of a policy of the type that such officials would be expected to issue. Thus, it is not sufficient simply to al lege that a high-level officer was "instrumental" or a "prin cipal architect" of a policy like the one respondent alleges. Instead, there must be an actual factual basis in the com plaint for concluding that such a policy exists and was handed down by such a high-level officer-here the Attor ney General or Director of the FBI himself.

Respondent relies (Br. 3) on Gomez v. Toledo, 446 U.S. 635 (1980), for the proposition that a plaintiff need not antic ipate the qualified-immunity defense in his complaint. Gomez, however, held only that a plaintiff need not allege that, in addition to violating the law, a defendant also acted in bad faith. Id. at 640. Now that this Court has replaced the bad-faith standard with an objective one for qualified immunity, see Harlow v. Fitzgerald, 457 U.S. 800, 815-818 (1982), that holding of Gomez is obsolete. Because the qualified-immunity and merits questions now turn on the same set of historical facts, the question under Rule 8(a)(2) is simply whether the plaintiff pleaded sufficient facts to make his claim plausible the context of the motion to dismiss asserting qualified immunity. Respondent has not done so.

b. Respondent does not dispute that, if his allegations are sufficient to subject high-ranking officials like the Attor ney General and the Director of the FBI to the demands of litigation, then, as Judge Cabranes recognized, virtually any complaint challenging the alleged actions of lower-level offi cers could draw in such officials simply by "following the blueprint laid out by this lawsuit." Pet. App. 70a (concur ring opinion); see Barr Amicus Br. 6. Indeed, respondent acknowledges (Br. 41) that his position "could result in some complaints with 'conclusory' allegations advancing to discov ery" (citation omitted). But as this Court reinforced in Bell Atlantic, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions." 127 S. Ct. at 1964-1965. Instead, a plaintiff must provide "enough fact to raise a reasonable expectation that discovery will reveal evidence of" illegal conduct. Id. at 1965 (emphasis added).

If adopted, respondent's position would effectively re turn the Federal Rules to the unduly lax pleading regime adopted by many courts on the basis of Conley v. Gibson, 355 U.S. 41 (1957).1 As explained in petitioners' opening brief (at 21-22), before Bell Atlantic, the courts of appeals had difficulty harmonizing the substantive rules of qualified immunity and the "accepted rule" that a complaint may not be dismissed "unless it appears beyond doubt that the plain tiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46; see, e.g., Thomas v. Independence Twp., 463 F.3d 285, 299 (3d Cir. 2006). In Bell Atlantic, this Court declared that Con ley's "no set of facts" formulation-on which the district court relied in this case, Pet. App. 136a-137a, 146a-was "best forgotten as an incomplete, negative gloss on an ac cepted pleading standard." 127 S. Ct. at 1969.

Respondent contends (Br. 23-24) that petitioners' posi tion is indistinguishable from the heightened pleading stan dards invalidated in Leatherman v. Tarrant County Narcot ics Intelligence & Coordination Unit, 507 U.S. 163 (1993), and Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). That is incorrect. Petitioners do not ask the Court to adopt any heightened pleading standard. Rather, their position is that the lower courts failed to follow this Court's decisions in this area and give a "firm application" of the Federal Rules. Re spondent's reliance (e.g., Br. 32-33) on Rule 9(b), which makes clear that its heightened pleading standard does not apply to allegations of intent, is misplaced for the same rea son. Rather than seeking a heightened pleading standard for any of respondent's allegations, petitioners argue that the normal Rule 8(a)(2) pleading standard must be consid ered-as Bell Atlantic reinforces-contextually with re spect to matters such as the plausibility of an allegation.2

2. Respondent's allegations against petitioners are too con clusory to overcome a motion to dismiss

As explained in petitioners' opening brief (Br. 30-38), respondent's conclusory allegations fall significantly short of stating a plausible claim for relief. See also Barr Amicus Br. 11-18. Although respondent lists (Br. 47-48) a number of allegations that supposedly suggest illegal conduct on the part of petitioners, whether taken singly or together, they are not sufficient to cross "the line between the conclusory and the factual" (Bell Atl. Corp., 127 S. Ct. at 1966 n.5) un der this Court's precedents. They do not, in other words, "possess enough heft" to meet Rule 8(a)(2)'s requirement that a pleader "show[]"-as opposed merely to assert-that he "is entitled to relief." 127 S. Ct. at 1966.

a. Respondent advances (Br. 24, 45-46) two theories for liability. The first is that, as part of the investigations into the September 11 attacks, the Attorney General and the FBI Director designed a policy of classifying suspects as "of high interest" to the investigation and holding them in more restrictive conditions of confinement solely on account of their race, religion, or national origin. See Resp. Br. 49. As the district court here recognized, "the assertion that high- level executive branch members created an unconstitutional policy, without more, would be insufficient to state a claim." Pet. App. 116a (citing Nuclear Transp. & Storage, Inc. v. United States, 890 F.2d 1348, 1355 (6th Cir. 1989)). And respondent points to no factual allegations that support the existence of such a discriminatory policy. Instead, respon dent relies (Br. 48), for instance, on the allegation that

[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were "cleared" by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.

Pet. App. 168a (Compl. ¶ 69). Respondent also highlights (Br. 48) his equally conclusory allegation that petitioners

willfully and maliciously designed a policy whereby indi viduals such as [respondent] were arbitrarily designated to be confined in the ADMAX SHU without providing any individual determination as to whether such desig nation was appropriate or should continue.

Pet. App. 173a (Compl. ¶ 97). Neither of those allegations suggests in any way that petitioners were involved in invidi ous discrimination. The allegations of petitioners' involve ment are conclusory, and in any event there is nothing in herently discriminatory about a general policy of holding suspects until cleared of any connection with the September 11 attacks, or with the alleged failure to provide an individ ual classification determination. See Pet. Br. 34-35.

Furthermore, respondent's other factual allegations contradict his claim that there was ever any national policy of classifying suspects as "of high interest" to the Septem ber 11 investigation solely because of their race, religion, or national origin. According to respondent, all of the alleged conduct was conducted by officials lower down on the chain of responsibility. He alleges that two lower-level officials "were responsible for making the initial determination as to whether detainees arrested within the New York area in the weeks and months after September 11 were classified as 'of high interest' to the government's investigation," and that those lower-level officials acted "without specific criteria or a uniform classification system." Pet. App. 164a (Compl. ¶¶ 48, 50) (emphasis added). Furthermore, not even respon dent claims that all people of Muslim or Arab origin who were detained as part of the September 11 investigation were classified as being "of high interest," or that all such classifications were the result of unlawful discrimination. Ibid. (Compl. ¶¶ 47, 48) (alleging only that "[m]any" of the "thousands of Arab Muslim men" that were arrested as part of the September 11 investigation were classified "as high interest"); ibid. (Compl. ¶ 49) (alleging only that "[i]n many cases" was the classification made because of the race, reli gion, and national origin of the detainees).

If, as respondent claims (Br. 49), the Attorney General and FBI Director had personally mandated a "discrimina tory policy of classifying Arab and Muslim detainees as 'high interest' solely because of their race, religion, and national origin," one would have expected more than a fraction3 of Arabs and Muslims held as part of the September 11 investi gation to have been classified as "of high interest."4 One would also have expected it to take much less than two months after his November 2001 arrest for respondent him self to be placed under more restrictive conditions. See Pet. App. 169a (Compl. ¶¶ 80-81). Thus, when the complaint is read as a whole, its allegations against petitioners are even less plausible than when taken in isolation.

Respondent also relies (Br. 47-48) on a number of broad and conclusory allegations related to general supervisory responsibility that simply do not provide "enough fact to raise a reasonable expectation that discovery will reveal evidence of" a discriminatory policy. Bell Atl. Corp., 127 S. Ct. at 1965. Conclusory allegations that the head of an agency was "instrumental" or a "principal architect" of ev erything in a complaint, see Pet. App. 157a (Compl. ¶¶ 10, 11) would be tantamount to extending respondeat superior liability to Bivens claims. Similarly, the entirely conclusory allegation that petitioners "adopt[ed] * * * a policy and practice" of illegally discriminating against respondent or "agreed to deprive" him of equal protection and privileges and immunities, id. at 201a, 202a, 208a (Compl. ¶¶ 232, 235, 250), cannot plausibly suggest illegal conduct absent some factual basis for those claims. To the extent respondent alleges (Br. 47) that the September 11 investigation gener ally focused on suspects who shared the common character istics of the September 11 hijackers, that allegation does not materially advance the specific claim that the Attorney Gen eral and FBI director directed lower-level officials to clas sify suspects as "of high interest" to the investigation and confine them in more restrictive conditions solely because of their race, religion, and national origin.

b. Respondent's second theory of liability-that peti tioners knew of and acquiesced in "their subordinates' use of discriminatory criteria to make classification decisions among detainees" (Resp. Br. 45-46)-fares no better. The Attorney General and the FBI Director generally do not involve themselves in the granular operational decisions of their subordinates. And respondent's suggestion that peti tioners engaged in this sort of micro-management during one of the largest criminal and national-security investiga tions in United States history is particularly implausible. See Barr Amicus Br. 15-16. Especially given the context in which these claims have been raised, respondent was re quired to come forward with "specific, nonconclusory factual allegations" to establish petitioner's knowledge of and acqui escence in alleged discrimination by lower level officials. Crawford-El, 523 U.S. at 598 (quoting Siegert, 500 U.S. at 236 (Kennedy, J., concurring in judgment)).

Not only did respondent fall well short of that obligation, the complaint is wholly devoid of any factual support for re spondent's claim. To demonstrate knowing acquiescence in unconstitutional conduct by petititioners' subordinates, re spondent relies heavily on his conclusory allegation that petitioners "knew of, condoned, and willfully and maliciously agreed to subject" respondent to the more restrictive deten tion conditions "solely on account of [his] religion, race, and/or national origin and for no legitimate penological in terest." Pet. App. 172a-173a (Compl. ¶ 96). But that allega tion does nothing to suggest why, contrary to usual practice, petitioners would have actual knowledge of the classification decisions being made by lower level officials.5 Moreover, the vast majority of Arab and Muslim men who were arrested on immigration or criminal charges as part of the Septem ber 11 investigation were not classified as being "of high interest." See note 3, supra. Not only does that fact sug gest a lack of discriminatory animus at any level of govern ment, it makes respondent's claim that petitioners were aware of supposed discrimination even less plausible: Even if petitioners knew the demographic particulars of those being arrested and detained, there would have been no rea son for them to draw the conclusion that lower-level subor dinates were using discriminatory criteria to classify sus pects. Thus, without further "factual matter," respondent's complaint fails to "raise a right to relief above the specula tive level." Bell Atl. Corp., 127 S. Ct. at 1965.

Because the complaint provides insufficient support to the claim that petitioners had personal involvement in any discriminatory decision, respondent is left with only his alle gations that petitioners exercised ultimate supervisory re sponsibility over the lower-level officials who were responsi ble for classification and confinement decisions, as part of their responsibility for investigating and prosecuting viola tions of federal criminal law. See Pet. App. 157a, 164a (Compl. ¶¶ 10, 11, 47). But, as explained below (see Pt. C, infra), and as petitioners do not dispute, mere supervisory responsibility and constructive knowledge of wrongdoing by subordinates cannot be an adequate basis for holding peti tioners personally liable under Bivens.

c. Respondent's speculation (Br. 38-39) that affirming the court of appeals will not burden petitioners because of the instruction to the district court to limit discovery is in correct and beside the point. As this Court has stressed, "[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 manage ment.' " Bell Atl. Corp., 127 S. Ct. at 1967. That principle has all the more force in the qualified-immunity context, as discussed above, and in cases against high-ranking govern ment officials who could be subjected to multiple discovery requests if such generalized and conclusory allegations are sufficient to obtain discovery. See Pet. App. 67a-70a & n.1.6

Respondent also argues (Br. 43, 55) that his complaint is sufficient because petitioners are able to file an answer that generally denies the general averments of the complaint. But the ability to give a general denial of general allegations in a complaint is not the determinant of the sufficiency of the pleadings; rather, as this Court has made clear, the allega tions must also be sufficiently factual and plausible to "raise a reasonable expectation that discovery will reveal evidence of" illegal activity. Bell Atl. Corp., 127 S. Ct. at 1965. Re spondent's allegations do not pass that threshold.7

C. Respondent Does Not Dispute That Supervisory Liability Under Bivens May Not Be Premised On Constructive Notice

The second question on which this Court granted review is whether a "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 constructive notice of the discrimination allegedly car ried out by such subordinate officials." Pet. (i). As ex plained in our opening brief (at 44-47), that question goes directly to the proper scope of the cause of action inferred in Bivens. Indeed, this Court has refused to extend the Bivens remedy to suits against anyone other than the indi vidual officers responsible for the alleged constitutional vio lation. See, e.g., FDIC v. Meyer, 510 U.S. 471 (1994).

Respondent simply refuses (at 12-13) to address the merits of that question. As a result, respondent does not dispute that the court of appeals articulated an incorrect legal standard and that petitioners could not be held liable unless they had actual knowledge of the assertedly discrimi natory nature of the classification of suspects as being "of high interest" and they were also deliberately indifferent to that discrimination. See Pet. Br. 42-52. The court of ap peals' undisputed application of an incorrect legal standard suffices by itself to require vacatur of the decision below.

Instead of briefing the second question presented on the merits, respondent simply renews (Br. 12-13) his petition- stage argument that certiorari was not warranted: that the question is not properly presented here because respondent has not alleged a constructive-knowledge theory of liability and the court of appeals, notwithstanding its articulation of such a theory, did not actually rely on it. See Br. in Opp. 10, 28. That contention is refuted by the record.

In arguing that petitioners had sufficient personal in volvement in the alleged constitutional violations, respon dent specifically contended in the court of appeals that such involvement "may be established" where "the official was grossly negligent in supervising subordinates who commit ted the wrongful acts." Resp. C.A. Br. 30 (quoting Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001)); see id. at 31 n.10 (arguing that "sufficient personal involvement may be stated by means of allegations that a defendant created a policy under which unconstitutional practices occurred, allowed the continuation of allegedly unlawful policies within the defendant's supervisory respon sibility, or exhibited gross negligence or deliberate indiffer ence to actual or constructive notice of unconstitutional prac tices" (internal citations omitted)). The court of appeals therefore recognized that respondent's claims rest in part on "generalized allegations of supervisory involvement." Pet. App. 25a.

More important, the court of appeals expressly adopt ed-as the controlling legal standard-a constructive-notice theory of liability. Pet. App. 14a. And at the culmination of its discussion of respondent's discrimination claims, the court specifically invoked its permissive standards for su pervisory liability in concluding that petitioners may be held personally liable "for the actions of their subordinates under the standards of supervisory liability outlined above" in its opinion. Id. at 62a. The court thereby relied on a legal stan dard that respondent does not defend.

Respondent claims (Br. 13) that petitioners "conced[ed] the validity of the very theory they now challenge" when their court of appeals brief quoted the court of appeals' well- established standard for supervisory liability. The court of appeals noted, however, that petitioners "argue[d] that [re spondent] failed to allege their personal involvement in any discrimination" and therefore failed to state a claim on which relief could be granted. Pet. App. 62a. The court went on to reject that argument, holding that-notwithstan ding respondent's own acknowledgment that petitioners were not involved in any individual classification decisions -petitioners could have "personal responsibility for the actions of their subordinates" under the Second Circuit's broad standards of supervisory liability. Ibid. As the gov ernment's petition-stage filings explained, this Court may review an issue that was either pressed or passed upon in the court of appeals. United States v. Williams, 504 U.S. 36, 41-43 (1992); Pet. Reply 10-11. Respondent is merely re hashing arguments that were briefed at the petition stage and that this Court presumably rejected in deciding to grant review of the second question presented.

Respondent also claims (Br. 12-13) that this Court lacks "jurisdiction" over the second question. But that argument is similarly unavailing: there is a live dispute between the parties in this case, this Court granted review of the second question, and the supervisory liability standard is actually antecedent to the question whether respondent adequately pleaded claims against petitioners. A respondent's failure to join issue on a question as to which the Court granted certiorari provides no reason for the Court to refrain from deciding it on the merits, particularly when, as here, the question is important and recurring. See Pet. 25-33.

More fundamentally, respondent has ignored the cen trality of the supervisory-liability standard for the qualified- immunity determination. Officials risk liability only when they violate clearly established rights, and this Court has long protected government supervisors from liability for the conduct of subordinates. Pet. Br. 44. Even more than dur ing the nineteenth century, see Parish v. United States, 100 U.S. 500, 504 (1880), executing the law requires multiple officers-in this case, many subordinate components, many with their own headquarters and field offices, each exercis ing a portion of the broad responsibility vested in a depart ment head. The court of appeals' standard disregards the complexities of levels of responsibility in government, in creases the personal exposure that our most senior execu tive officials undertake when they accept their responsibili ties of office, and extends the inferred Bivens remedy well beyond its intended purposes as well as beyond the express cause of action in 42 U.S.C. 1983. See Pet. Br. 44-50.

The court of appeals' reliance on an undisputedly errone ous legal standard in allowing the Bivens claims against petitioners to proceed is alone fatal to its judgment.

* * * * *

For the foregoing reasons and those stated in our open ing brief, the judgment of the court of appeals should be reversed and the case should be remanded with instructions to dismiss the remaining claims against petitioners.

Respectfully submitted.

 

GREGORY G. GARRE
Solicitor General

 

 

NOVEMBER 2008

1 Respondent's law-professor amici urge just such a retreat: "[I]m plausibility might be established if the plaintiff were to allege a state of affairs that was so beyond the common understanding as to be virtual ly, if not literally, incredible." Profs. of Civ. Pro. Br. 14 (emphasis ad ded). That "incredibility" standard is indistinguishable from the stan dard that this Court squarely rejected in Bell Atlantic (127 S. Ct. at 1969) of allowing a complaint to survive "unless it appears beyond doubt that the plaintiff can prove no set of fact in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46.

2 Respondent's heavy reliance (e.g., Br. 24, 41) on Swierkiewicz is es pecially misplaced. Swierkiewicz was a suit against a private company under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq., not a Bivens suit against high-level government officials. See Pet. Br. 38. In any event, as this Court noted, the plaintiff "detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination." Swierkiewicz, 534 U.S. at 514. In the context of a suit against the company for actions taken by a plaintiff's superior, the allegations were adequately specific to make out a plausible claim of employment discrimination. Respondent's reliance (Br. 40-41) on Erickson v. Pardus, 127 S. Ct. 2197 (2007) (per curiam), is likewise misplaced because the complaint there included specific details, see Pet. Br. 39 n.7, and the fact in dispute-whether the plain tiff could suffer harm when prison officials discontinued his prescribed treatment program for hepatitis C, Erickson, 127 S. Ct. at 2200-had nothing to do with establishing the personal involvement or conduct of the defendants.

3 According to the Office of Inspector General Report, of the 762 in dividuals held on immigration charges for suspected links to the Sep tember 11 attacks, only 184 were deemed to be "of high interest" to the investigation and held under special conditions of confinement. See Pet. Br. 33 n.4.

4 Respondent also urges (Br. 53) that alleged discriminatory animus with regard to the decision to classify other suspects as merely "of in terest" to the investigation would support his claims against petitioners. To begin with, even if that claimed discrimination took place, the com plaint would still be fatally flawed because it fails to provide sufficient factual matter to make plausible the personal involvement of petitioners in any discriminatory decision. But in any event, respondent's allega tions are focused not on any decision to classify other suspects as "of interest" but of the decision to classify him as "of high interest" (and thus house him under more secure conditions of confinement). See Pet. App. 201a (Compl. ¶ 232) (raising cause of action based on "policy and practice of imposing harsher conditions of confinement on Plaintiffs be cause of Plaintiffs' sincere religious beliefs"); id. at 202a (Compl. ¶ 235) (same regarding race discrimination). The court of appeals similarly focused on the allegation that respondent was classified as "of high in terest" to the investigation "solely because of his race, ethnicity, and religion." Id. at 59a.

5 Respondent states (Br. 43) that "in the lower courts, defense coun sel have suggested that petitioner Ashcroft authored a memorandum to subordinates * * * outlining how the classification system * * * was to be carried out." As explained in our reply brief at the certiorari stage (at 4 n.2), the apparent document cannot bear the speculative weight that respondent places upon it. More important, whatever has been stated in later proceedings in the case, the complaint fails to allege any direct communication between petitioners and lower-level officials responsible for classification decisions.

For the same reasons, the sufficiency of the allegations in respon dent's complaint is not affected by extra-record materials that amici claim they have discovered. See Turkmen Amicus Br. 20. A complaint must cross the line between the possible and the plausible before dis covery is appropriate, and neither respondent nor his amici can over come the deficiencies in the complaint at issue by pointing to material described in an amicus brief. Although other amici contend that an exception should be made when facts are in the defendants' possession (Amer. Ass'n for Justice Amicus Br. 19-25; Nat'l Civ. Rights Orgs. Amicus Br. 5, 30; Japanese American Citizens League Amicus Br. 37), that would also have been true about the allegedly illegal agreement be tween the defendants in Bell Atlantic.

Moreover, the Turkmen amici concede that, even with the informa tion in their proposed lodging, "[m]ore investigation is required to de termine whether petitioners directed that Muslim and Arab men be treated as 'of interest' to the terrorism investigation." Amicus Br. 4. None of the information they point to (id. at 10-14) shows that petition ers were "aware" of discriminatory classification decisions. The fact that daily reports submitted to the Attorney General listed specific con nections to the September 11 hijackers for some detainees but not others (id. at 13-14) would not have signaled that the others (who were still being investigated) were of "interest" to the FBI only because of their race, religion, or nationality. Similarly, even if proven, their alle gation (id. at 15-16) that the Attorney General caused certain suspects (not including respondent) to be placed on a list of those whose potential connections to the September 11 investigation were still being investi gated, would not show discriminatory intent.

6 Respondent's suggestion (Br. 11) that it will only be the "rare" case in which "officials like petitioners may properly be subject to discovery" is belied by other courts that have already invoked the decision below in allowing implausible claims to proceed. See, e.g., Twitty v. Ashcroft, No. 3:04-CV-410 (RNC), 2008 WL 346124, at *1 (D. Conn. Feb. 4, 2008) (refusing, in light of decision below, to dismiss prisoner's claim that Attorney General Ashcroft and other federal officials were personally involved in the decision to transfer him from a federal penitentiary in Illinois to a Connecticut state prison in retaliation for filing lawsuits and grievances).

7 Respondent also suggests (Br. 39) that the government's settle ment with Ehab Elmaghraby is itself proof that his claims are not "in substantial." But that was a settlement of Elmaghraby's claims against the United States under the Federal Tort Claims Act that he had been physically abused by prison guards and negligently denied adequate medical treatment. See 04-CV-1809 Docket entry No. 404 (E.D.N.Y. Mar. 15, 2006) (Stipulation for Compromise Settlement and Release of Federal Tort Claims Act Claims Pursuant to 28 U.S.C. § 2677). Be cause Elmaghraby recovered nothing on his Bivens claims, his settle ment does not enhance the viability of respondent's claims against the former Attorney General and current FBI Director.