Mammar Ameur v. Robert Gate
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:12-cv-00823-GBL-TRJ. [999396601]. [13-2011]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2011
MAMMAR AMEUR,
Plaintiff - Appellant,
v.
ROBERT M. GATES, in his individual capacity; DONALD RUMSFELD, in
his individual capacity; PAUL WOLFOWITZ, in his individual
capacity; GORDON ENGLAND, in his individual capacity; JAMES M.
MCGARRAH, in his individual capacity; RICHARD B. MYERS, in his
individual capacity; PETER PACE, in his individual capacity;
MICHAEL GLENN MULLEN, “Mike”, in his individual capacity; JAMES
T. HILL, in his individual capacity; BANTZ CRADDOCK, in his
individual capacity; GEOFFREY D. MILLER, in his individual
capacity; JAY HOOD, in his individual capacity; HARRY B. HARRIS,
JR., in his individual capacity; MARK H. BUZBY, in his
individual capacity; ADOLPH MCQUEEN, in his individual capacity;
NELSON CANNON, in his individual capacity; MICHAEL BUMGARNER, in
his individual capacity; WADE DENNIS, in his individual
capacity; BRUCE VARGO, in his individual capacity; ESTEBAN
RODRIGUEZ, in his individual capacity; DANIEL MCNEILL, in his
individual capacity; GREGORY J. IHDE, in his individual
capacity; JOHN DOES 1-100, in their individual capacities;
UNITED STATES OF AMERICA,
Defendants – Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12−cv−00823−GBL−TRJ)
Argued:
May 13, 2014
Decided:
July 16, 2014
Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.
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Affirmed by published opinion. Judge Agee wrote the opinion, in
which Chief Judge Traxler and Judge Motz joined.
ARGUED: Gwynne Lynette Skinner, WILLAMETTE UNIVERSITY COLLEGE OF
LAW, Salem, Oregon, for Appellant. Sydney Foster, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON
BRIEF: Stuart F. Delery, Assistant Attorney General, Matthew M.
Collette, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Dana J. Boente, Acting United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellees.
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AGEE, Circuit Judge:
In
2003,
suspected
United
terrorist
States
Mammar
military
Ameur
at
personnel
a
detained
military
base
in
Afghanistan and, later, at a facility in Guantanamo Bay, Cuba.
Although Ameur was determined to be an “enemy combatant,” he was
eventually released to his native country of Algeria in 2008.
After being released, Ameur brought suit in district court
against
former
Secretary
of
Defense
Robert
Gates
and
federal officials allegedly involved in his detention.
other
Ameur’s
complaint requested monetary damages under the Alien Tort Claims
Act, 28 U.S.C. § 1350, the Religious Freedom Restoration Act, 42
U.S.C.
§§
2000bb–bb-4,
and
the
United
States
Constitution.
Applying a provision of the Military Commissions Act of 2006
(“MCA”), 28 U.S.C. § 2241(e)(2), the district court dismissed
the complaint for lack of subject matter jurisdiction.
On appeal, Ameur contends that the district court erred in
relying on an MCA provision that he argues the Supreme Court
invalidated
in
Boumediene
v.
Bush,
553
U.S.
723
(2008).
Additionally, he maintains that the relevant MCA provision was
unconstitutionally applied in his case, even if Boumediene did
not explicitly invalidate the MCA statute.
For the reasons discussed below, we affirm the district
court’s decision.
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I.
A.
Ameur’s complaint alleges that he was first detained in
2002 by Pakistani authorities. 1
Later, Ameur was transferred to
American military custody at Bagram Airfield in Afghanistan.
In
March 2003, he was moved to detention facilities at the U.S.
Naval Base in Guantanamo Bay, Cuba.
Ameur
alleges
that
he
suffered
mistreatment
during each of his various detentions and transfers.
and
abuse
At Bagram,
for instance, Ameur was purportedly beaten, attacked by dogs,
subjected to harsh lights and music, interrogated, placed into
stress
positions,
and
deprived
of
religious
materials.
Similarly harsh abuse allegedly continued at Guantanamo until
his release.
In 2004, during his detention at Guantanamo, a Combatant
Status Review Tribunal (“CSRT”) determined that Ameur was an
“enemy combatant.” 2
As an “enemy combatant,” Ameur was found to
1
Because the district court disposed of Ameur’s complaint
at the motion-to-dismiss stage, we “accept[] all well-pled facts
as true and construe[] these facts in the light most favorable
to
the
plaintiff.”
Nemet
Chevrolet,
Ltd.
v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
2
CSRTs
are
“executive-branch
tribunals
convened
to
determine the status of Guantanamo detainees.” Janko v. Gates,
741 F.3d 136, 138 (D.C. Cir. 2014); see also Al-Nashiri v.
MacDonald, 741 F.3d 1002, 1004–05 (9th Cir. 2013) (discussing
Department of Defense orders establishing CSRTs).
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have been a “part of or supporting Taliban or al Qaida forces,
or associated forces that are engaged in hostilities against the
United States or its coalition partners.”
Bismullah v. Gates,
514 F.3d 1291, 1297 n.8 (D.C. Cir. 2008) (quoting Department of
Defense regulations).
Although Ameur alleges that the CSRT’s
decision was unsupported, his designation as an enemy combatant
remains unchanged.
In
August
2005,
an
Administrative
Review
Board
(“ARB”)
recommended that Ameur was eligible for discretionary release, 3
but
did
not
reverse
Ameur’s
enemy-combatant
designation.
Rather, the ARB determination was premised “on an assessment of
various factors, including the continued threat posed by each
detainee.”
omitted).
Janko,
741
F.3d
at
138
n.2
(quotation
marks
Ameur was eventually released and transferred to his
native Algeria in 2008.
B.
Three
years
after
his
release,
in
2011,
Ameur
filed
a
complaint in the U.S. District Court for the Western District of
3
The executive branch created ARBs “to assess annually the
need to continue to detain each enemy combatant during the
course of the current and ongoing hostilities.”
Associated
Press v. U.S. Dep’t of Def., 554 F.3d 274, 279 n.1 (2d Cir.
2009). This process permits each enemy combatant at Guantanamo
“to explain why he is no longer a threat to the United States
and its allies in the ongoing armed conflict against Al Qaida
and its affiliates and supporters or to explain why his release
would otherwise be appropriate.” Id.
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Washington.
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His complaint contained claims against Gates, 21
other current and former Department of Defense officials, and
100 unnamed “John Doe” federal officials in their individual
capacities.
The Washington district court first dismissed all
of Ameur’s claims -- except those claims against Gates -- for
lack of personal jurisdiction.
decisions
described
in
Then, finding that many of the
Ameur’s
complaint
were
made
at
the
Pentagon, the district court transferred the case to the Eastern
District of Virginia.
Once
complaint.
the
the
case
was
transferred,
Ameur
filed
an
amended
This amended complaint reasserted claims against all
original
defendants,
contending
that
they
performed,
endorsed, commanded, or supported various unlawful acts during
Ameur’s
detention.
Ameur
alleged
that
these
acts
violated
customary international law, the Geneva Conventions, the First
and Fifth Amendments, and the Religious Freedom Restoration Act.
The complaint sought compensatory and punitive monetary damages.
Invoking the Westfall Act, 28 U.S.C. § 2679, the United
States
substituted
itself
claims
under
Alien
certified
that
the
the
for
all
Tort
defendants
Claims
defendants
were
Act.
federal
as
The
to
Ameur’s
Government
employees
acting
within the scope of their employment when they performed the
acts alleged in Ameur’s complaint.
6
See 28 U.S.C. § 2679(d).
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The United States and the individual defendants then filed
a motion to dismiss, which the district court granted.
See
Ameur v. Gates, 950 F. Supp. 2d 905, 913 (E.D. Va. 2013).
The
district court determined that 28 U.S.C. § 2241(e)(2) deprived
it of subject matter jurisdiction, as Ameur was detained as an
enemy
combatant
detention.
Id.
and
at
his
claims
910–13;
see
concerned
also
28
his
U.S.C.
treatment
§
in
2241(e)(2)
(barring non-habeas-corpus actions brought by certain detainees
challenging the conditions of their detention).
Furthermore,
the district court held that sovereign immunity barred Ameur’s
international-law
claims,
as
the
United
States
had
properly
substituted itself as a defendant to those claims. 4
Ameur timely appealed, and we have jurisdiction under 28
U.S.C. § 1291.
II.
This appeal considers the effect of one portion of the MCA
codified at 28 U.S.C. § 2241(e). Section 2241(e) provides:
(1)
No
court,
justice,
or
judge
shall
have
jurisdiction to hear or consider an application for a
writ of habeas corpus filed by or on behalf of an
alien detained by the United States who has been
determined by the United States to have been properly
4
In a footnote, the district court also noted that Ameur
had failed to plead that he had administratively exhausted his
international-law claims, providing an additional reason to
dismiss them.
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detained as an enemy combatant or is awaiting such
determination.
(2) Except as provided in paragraphs (2) and (3) of
section 1005(e) of the Detainee Treatment Act of 2005
(10 U.S.C. 801 note), no court, justice, or judge
shall have jurisdiction to hear or consider any other
action against the United States or its agents
relating to any aspect of the detention, transfer,
treatment, trial, or conditions of confinement of an
alien who is or was detained by the United States and
has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting
such determination.
In Boumediene, the Supreme Court struck down § 2241(e)(1)
as an unconstitutional suspension of the writ of habeas corpus.
But § 2241(e)(2), which bars plaintiffs like Ameur from bringing
“any other action,” does not implicate habeas corpus.
If § 2241(e)(2) applies to Ameur’s claims, then courts lack
subject matter jurisdiction to hear them.
See, e.g., Aamer v.
Obama, 742 F.3d 1023, 1028–29 (D.C. Cir. 2014); Al-Nashiri, 741
F.3d at 1006–07.
subject
matter
When a district court dismisses for lack of
jurisdiction,
as
in
the
case
before
us,
“we
review the district court’s factual findings with respect to
jurisdiction for clear error and the legal conclusion that flows
therefrom de novo.”
326,
333
omitted).
others.
(4th
Cir.
In re KBR, Inc., Burn Pit Litig., 744 F.3d
2014)
(quotation
marks
and
alteration
We must decide this jurisdictional issue before any
See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
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83, 94 (1998) (“Without jurisdiction the court cannot proceed at
all in any cause.” (quotation marks omitted)).
Section 2241(e)(2)’s plain terms bar Ameur’s suit, and he
does not argue to the contrary.
Ameur’s action is one “other”
than
discussed
habeas
corpus,
which
subsection, § 2241(e)(1).
is
in
the
preceding
It is against “agents” of the United
States, in that all the defendants were government personnel at
the time of the relevant events.
See Hamad v. Gates, 732 F.3d
990, 990–91, 995 (9th Cir. 2013) (finding that detainee’s suit
against same defendants was “against the United States or its
agents”).
The complaint relates only to Ameur’s “detention,
transfer, treatment, trial, or conditions of confinement” during
his “detention by the United States.”
And a CSRT panel has
determined that Ameur was an “enemy combatant.”
F.3d
at
144
(holding
that
a
CSRT
See Janko, 741
determination
is
a
determination by the United States under § 2241(e)(2)); Hamad,
732 F.3d at 995 (same).
Finally, Ameur does not bring his suit
under the identified provisions of the Detainee Treatment Act
(“DTA”),
which
formerly
permitted
suits
seeking
review
of
certain CSRT determinations and military commission decisions in
the U.S. Court of Appeals for the D.C. Circuit.
L.
No.
109–148,
§
1005(e)(2)–(3),
(2005).
9
119
Stat.
See DTA, Pub.
2680,
2741–42
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Conceding that his claims come within the plain terms of
§ 2241(e)(2),
stripping
Ameur
provision
instead
is
argues
invalid.
that
He
the
posits
jurisdiction-
two
independent
grounds for his position: (1) the Supreme Court has expressly
invalidated § 2241(e)(2); or (2) even if the statute has not
been directly rejected, it is nevertheless non-severable from
§ 2241(e)(1),
unconstitutional.
which
has
been
expressly
declared
We address these arguments in turn.
III.
Initially, Ameur contends that the Supreme Court expressly
struck down § 2241(e)(2) in Boumediene.
In
Boumediene,
the
Supreme
Court
We disagree.
addressed
an
entirely
separate part of the MCA –- § 2241(e)(1), which solely concerns
habeas
corpus.
The
Court
first
observed
that
§
2241(e)(1)
stripped courts of jurisdiction to hear habeas actions brought
by aliens held at Guantanamo.
553 U.S. at 736–38.
Then, after
surveying the history of the writ, the Court determined that
habeas corpus did extend to aliens held at Guantanamo.
Because
Guantanamo detainees were entitled to habeas review, the Supreme
Court
concluded
that
§ 2241(e)(1)’s
denial
of
that
right
implicated Article I, section 9 of the Constitution –- often
termed the Suspension Clause.
Id. at 771; see also U.S. Const.
art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus
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shall not be suspended, unless when in Cases of Rebellion or
Invasion the public Safety may require it.”).
The Court further
concluded that aliens held at Guantanamo were not afforded any
adequate substitute for habeas corpus, 553 U.S. at 792, and,
lacking that substitute, “§ 7 of the [MCA], 28 U.S.C. § 2241(e),
operate[d] as an unconstitutional suspension of the writ.”
Id.
at 733.
Despite its unrestricted reference to § 2241(e) in that one
sentence, the Supreme Court’s sole focus in Boumediene was the
effect of the Suspension Clause on § 2241(e)(1), as the only
matter before the Court was an application for a writ of habeas
corpus.
But § 2241(e)(2) –- the section we are concerned with
here -- relates strictly to actions “other” than habeas.
that
reason,
§ 2241(e)(2).
Boumediene
did
not
address
the
validity
For
of
And because § 2241(e)(2) does not limit, discuss,
relate to, or otherwise touch upon the writ, it could not be
said to “suspend” it.
Therefore, § 2241(e)(2) lacks any nexus
to the rationale adopted by the Supreme Court in Boumediene.
See Aamer, 742 F.3d at 1030 (“[S]ection 2241(e)(2) has no effect
on habeas jurisdiction, and thus the Suspension Clause is not
relevant
and
does
not
affect
the
constitutionality
of
the
statute.” (quotation marks omitted)); see also, e.g., Swain v.
Pressley,
430
U.S.
372,
380–82
11
(1977)
(explaining
that
the
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is
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violated
only
where
habeas
corpus
is
rendered “inadequate or ineffective”).
Even
language
so,
Ameur
–-
for
seizes
on
instance,
some
the
of
the
Court’s
quotation
broader
recited
above
referencing the entire MCA Section 7 -- and insists that the
Court invalidated more than just the habeas-related provision of
§ 2241(e)(1). 5
Two of our sister circuits have already rejected
this formalistic argument.
We must do so as well.
See Hamad,
732 F.3d at 1000 (“[T]he logic and context of the opinion make
clear
that
the
§ 2241(e)(1).”);
Supreme
Al-Zahrani
Court
v.
was
Rodriguez,
addressing
669
F.3d
only
315,
319
(D.C. Cir. 2012) (“[T]he Supreme Court’s decision in Boumediene
[struck]
the
bar
to
federal
court
jurisdiction
over
habeas
claims, but . . . the reasoning of the Supreme Court applied
only to the stripping of habeas jurisdiction.”).
5
Ameur also says that the Supreme Court in Boumediene
expressly “rejected the argument that [§§] 2241(e)(1) and (e)(2)
could be read apart or treated separately.”
(Appellant’s
Opening Br. 16.) Ameur misreads Boumediene. As the Government
notes, Boumediene suggested that the two subsections of
§ 2241(e) had to be read together for purposes of an effectivedate provision.
See 553 U.S. at 737.
The Court did not
anywhere intimate that the provisions were to be read together
in any other instance or for any other purpose. As the district
court explained, the Court’s discussion of the effective-date
provision does not apply here because this case does not relate
to the effective-date provision. See Ameur, 950 F. Supp. 2d at
913.
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Ameur’s broadest-possible-reading approach is inconsistent
with the analysis that we undertake in applying Supreme Court
opinions.
“[G]eneral expressions, in every opinion, are to be
taken in connection with the case in which those expressions are
used.”
Ark. Game & Fish Comm’n v. United States, 133 S. Ct.
511, 520 (2012) (quotation marks omitted); see also Armour & Co.
v. Wantock, 323 U.S. 126, 133 (1944) (“[W]ords of our opinions
are to be read in the light of the facts of the case under
discussion. To keep opinions within reasonable bounds precludes
writing into them every limitation or variation which might be
suggested by the circumstances of cases not before the Court.”).
Boumediene arose solely in the habeas corpus context, not in a
case involving a basic claim for damages –- that is, a case like
the one before us.
Boumediene relied on law exclusive to habeas
corpus and therefore should be applied only to the habeas-corpus
context in which it arose.
In sum, the Supreme Court in Boumediene did not address,
let alone invalidate, § 2241(e)(2).
“[T]o the extent that the
Supreme Court in Boumediene . . . permitted further judicial
examination
of
the
detention
of
enemy
combatants,
it
did
so
using the limited tool of the constitutionally guaranteed writ
of habeas corpus -- not an implied and open-ended civil damages
action.”
Lebron v. Rumsfeld, 670 F.3d 540, 555 (4th Cir. 2012).
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IV.
In
the
invalidated
§ 2241(e)(1).
alternative,
§ 2241(e)(2)
Ameur
by
argues
implication
that
in
Boumediene
striking
down
He contends that §§ 2241(e)(1) and (e)(2) are
non-severable, even though § 2241(e)(2) is a separate provision.
In other words, Ameur posits that the separate subsections found
in Section 7 of the MCA –- §§ 2241(e)(1) and (e)(2) -- must rise
and fall together.
Boumediene did not address severability; it had no reason
to.
Nonetheless,
Ameur
maintains
that
“the
absence
of
any
severability analysis in Boumediene supports the conclusion that
the Court did not believe that the two subsections of § 2241(e)
were severable.”
(Appellant’s Opening Br. 18.)
He cites no
authority –- and we have found none -- supporting that kind of
adverse
inference.
In
fact,
“[c]ourts
routinely
reserve
judgment on severability, especially when, as in Boumediene, no
party briefed the issue or raised it at oral argument.”
v. Gates, 545 F.3d 1068, 1072 (D.C. Cir. 2008).
Basardh
As Justice
Thomas has explained, even the Supreme Court “often disposes of
as-applied challenges to a statute . . . without saying anything
at all about severability.”
United States v. Booker, 543 U.S.
220, 322 (2005) (Thomas, J., dissenting).
“Such decisions (in
which the Court is silent as to applications not before it)
might be viewed as having conducted an implicit severability
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A better view is that the parties in those cases
could have raised the issue of severability, but did not bother,
because (as is often the case) there was no arguable reason to
defeat
the
presumption
of
severability.”
Id.
(citation
omitted).
And indeed, Ameur’s argument faces a high hurdle in view of
the
presumption
of
severability.
“Generally
speaking,
when
confronting a constitutional flaw in a statute, we try to limit
the solution to the problem.”
Ayotte v. Planned Parenthood of
N. New England, 546 U.S. 320, 328 (2006); accord Pittston Co. v.
United States, 368 F.3d 385, 400 (4th Cir. 2004) (recognizing
the
“background
presumption
that
when
an
application
of
a
statute is determined to be unconstitutional, courts seek to
preserve as much of the statute as is still consistent with
legislative
part
of
an
intent”).
Act
“Because
does
not
the
unconstitutionality
necessarily
defeat
or
of
affect
a
the
validity of its remaining provisions, the ‘normal rule’ is that
partial . . . invalidation is the required course.”
Free Enter.
Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161
(2010) (quotation marks, alteration, and citation omitted).
Applying the presumption of severability, we will find one
statutory
provision
to
be
severable
from
another
encounter one of three limited circumstances.
unless
we
First, we must
strike any provisions that are not themselves constitutionally
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See Booker, 543 U.S. at 258.
Second, we must invalidate
a provision if it is incapable of “functioning independently.”
Id.
And third, we cannot uphold a provision if its separate
existence would be inconsistent with “Congress’ basic objectives
in enacting the statute.”
Ameur
suggests
Id. at 259.
that
circumstances exist here.
all
three
of
these
limited
We find that none of the arguments
that Ameur proffers has merit.
A. Constitutional Validity
Ameur
raises
four
constitutionality.
distinct
First,
he
challenges
to
suggests
§ 2241(e)(2)’s
that
the
unconstitutionally deprives him of access to courts.
statute
Second, he
maintains that § 2241(e)(2) unconstitutionally directs the rules
of decision in a case.
Third, he argues that § 2241(e)(2)’s
focus on alien detainees violates equal protection principles.
And
fourth,
he
unconstitutional
says
bill
of
that
the
attainder.
section
amounts
All
these
of
to
an
arguments
fail.
1.
Ameur
§ 2241(e)(2)
first
of
argues
any
forum
that
for
Congress
his
deprived
purported
him
in
constitutional
violations, violating both separation-of-powers principles and
due process.
To be sure, the Supreme Court has noted that
“serious constitutional questions” may arise if a person is left
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without
a
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forum
for
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adjudicating
his
constitutional
claims.
See, e.g., Calcano-Martinez v. INS, 533 U.S. 348, 351 (2001).
To resolve this case, however, we need not decide whether
Congress can entirely foreclose constitutional claims, as Ameur
asks only for monetary damages.
require
the
availability
plaintiff’s
claim
is
constitutional rights.”
of
“[T]he Constitution does not
such
based
a
on
remedy,
even
the
violations
alleged
where
of
Hamad, 732 F.3d at 1003; accord Al-
Zahrani, 669 F.3d at 319–20; Davis v. District of Columbia, 158
F.3d 1342, 1346 (D.C. Cir. 1998) (“[T]he Constitution does not
mandate a damages remedy for all injuries suffered as a result
of a constitutional violation.”).
In other words, money damages
are “not an automatic entitlement” anytime that constitutional
rights have been violated.
Wilkie v. Robbins, 551 U.S. 537, 550
(2007); accord Zehner v. Trigg, 133 F.3d 459, 462 (7th Cir.
1997)
(“[T]he
Constitution
does
not
demand
an
individually
effective remedy for every constitutional violation.”).
Indeed, the Supreme Court has refused to imply a monetary
remedy for constitutional violations in many cases.
See Minneci
v. Pollard, 132 S. Ct. 617, 622 (2012) (collecting cases and
noting that “the Court has had to decide in several different
instances
instance
whether
it
has
to
imply
decided
a
Bivens
against
the
action[,]
[a]nd
existence
of
in
such
each
an
action”); see also, e.g., Lebron, 670 F.3d at 555-56 (refusing
17
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Pg: 18 of 33
to recognize implied damages remedy for claimed constitutional
violations at Guantanamo).
For instance, the Supreme Court has
refused to recognize Bivens claims where Congress created an
alternative remedial scheme to resolve those claims, see, e.g.,
Schweiker v. Chilicky, 487 U.S. 412, 424-28 (1988), or where
“special
factors”
--
such
as
concerns
over
interfering
in
military affairs -- counsel against recognizing a new form of
liability, see, e.g., United States v. Stanley, 483 U.S. 669,
681 (1987).
Given Congress’ clear intent to divert detainee
treatment claims from federal court and into military tribunals,
and given the obvious national security concerns such claims
implicate, we have already concluded that constitutional claims
brought by Guantanamo detainees are not cognizable under Bivens.
See Lebron, 670 F.3d at 555-56 (“Congress rather than the courts
should
decide
whether
a
constitutional
recognized in these circumstances.”). 6
claim
should
be
As courts may decline to
recognize an implied cause of action for money damages in these
6
At oral argument, counsel for Ameur noted that the
complaint also sought “such further relief as the Court may deem
just and proper.”
(J.A. 67.)
She suggested that this vague
boilerplate phrase might provide a basis to find that Ameur
sought more than monetary damages.
Nonetheless, counsel
conceded that the crux of the complaint was monetary relief and
was unable to define any additional relief that might be
available.
We agree with the Government, then, that this suit
is a suit for monetary damages.
Moreover, Ameur failed to
present this argument in the district court or in his briefs in
this Court, so “we hold that it was waived.” W. Va. CWP Fund v.
Stacy, 671 F.3d 378, 389 (4th Cir. 2011).
18
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Filed: 07/16/2014
circumstances,
then
surely
Pg: 19 of 33
Congress
may
explicitly
deprive
courts of jurisdiction to entertain those very same cases.
“[W]hen Congress can validly extinguish a right to one or
more
judicial
remedies,
it
can
also
take
away
judicial
jurisdiction over suits in which plaintiffs seek remedies that
Congress has permissibly precluded.”
Richard H. Fallon, Jr.,
Jurisdiction-Stripping Reconsidered, 96 Va. L. Rev. 1043, 1104
(2010).
After all, “the right of access to federal courts is
not a free-floating right, but rather is subject to Congress’
Article
III
power
to
set
limits
on
federal
jurisdiction.”
Roller v. Gunn, 107 F.3d 227, 231 (4th Cir. 1997).
Ameur suggests that we find a constitutional entitlement to
damages in these circumstances because former detainees may not
look to other remedies such as a writ of habeas corpus or an
injunction.
According to Ameur, money damages afford his only
conceivable means of remedying the constitutional violations he
suffered.
By depriving courts of jurisdiction to hear money
damages claims, Ameur argues, Congress has altogether prevented
him from vindicating his constitutional rights.
But the Supreme Court has held that courts may be deprived
of jurisdiction to hear damages claims even in cases where money
damages
provide
the
plaintiff’s
only
means
of
recovery.
In
Stanley, for example, the Court declined to recognize a damages
remedy
even
though
the
plaintiff’s
19
only
possible
remedy
was
Appeal: 13-2011
Doc: 33
money
Filed: 07/16/2014
damages,
as
Pg: 20 of 33
“congressionally
uninvited
intrusion
military affairs by the judiciary is inappropriate.”
at 683.
laws
483 U.S.
“It is irrelevant,” the Court explained, “whether the
currently
particular
on
the
serviceman,
injuries.”
damages
into
Id.
remedy
The
in
books
an
afford
‘adequate’
Court’s
Stanley
Stanley,
--
federal
readiness
even
to
where
or
any
remedy
for
withhold
it
was
other
a
his
money
“damages
or
nothing,” id. at 690 (Brennan, J., dissenting) -- demonstrates
that Congress may similarly withhold a damages remedy here.
We
may not assume that a constitutionally mandated remedy exists
for Ameur merely because he cannot locate a remedy elsewhere.
See also Bush v. Lucas, 462 U.S. 367, 388 (1983) (stating that
the
question
of
whether
to
imply
a
monetary
remedy
for
a
constitutional violation “obviously cannot be answered simply by
noting that existing remedies do not provide complete relief for
the plaintiff”).
Section
power
2241(e)(2)
principles
or
thus
due
does
process
not
by
violate
denying
separation-of-
Ameur
access
to
courts.
2.
Section
2241(e)(2)
unconstitutional
attempt
also
on
Congress’
substantive outcome of litigation.”
26.)
does
not
part
reflect
“to
direct
an
the
(Appellant’s Opening Br.
Ameur premises this argument on United States v. Klein, 80
20
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Filed: 07/16/2014
Pg: 21 of 33
U.S. (13 Wall.) 128, 146 (1871), in which the Supreme Court
warned that Congress could not “prescribe rules of decision . .
. in cases pending before [the Court].”
We have narrowly read
Klein to hold only that “Congress violates the separation of
powers when it presumes to dictate how the Court should decide
an issue of fact (under threat of loss of jurisdiction) and
purports to bind the Court to decide a case in accordance with a
rule of law independently unconstitutional on other grounds.”
United States v. Brainer, 691 F.2d 691, 695 (4th Cir. 1982)
(quotation marks omitted).
any
issue
of
fact
or
bind
unconstitutional rule.
cases,
and
this
§ 2241(e)(2).
case
Section 2241(e)(2) does not speak to
the
Court
to
an
independently
More obviously, Klein speaks to pending
was
not
pending
when
Congress
enacted
See Miller v. French, 530 U.S. 327, 349 (2000)
(characterizing Klein’s holding as limited to pending cases).
Thus, for many reasons, Klein does not apply here.
3.
Ameur
next
raises
an
equal
protection
challenge
§ 2241(e)(2), noting that it applies only to aliens.
to
In the
equal-protection context, a “challenged classification need only
be rationally related to a legitimate state interest unless it
violates
a
fundamental
right
or
is
drawn
upon
classification such as race, religion, or gender.”
v. Johnson, 521 F.3d 298, 303 (4th Cir. 2008).
21
a
suspect
Giarratano
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Filed: 07/16/2014
Rational-basis
review
–-
Pg: 22 of 33
not
strict
scrutiny,
argues –- is the correct standard to apply here.
Hamad,
732
F.3d
at
1005–06
(assessing
constitutionality under rational-basis test).
as
enemy
combatants
damages remedy.
enjoy
no
fundamental
as
Ameur
See, e.g.,
§ 2241(e)(2)’s
Aliens detained
right
to
a
money
Nor is the alienage classification found in
§ 2241(e)(2) a suspect classification.
When Congress classifies
based on alienage, courts give that choice leeway.
See, e.g.,
Korab v. Fink, 748 F.3d 875, 882 (9th Cir. 2014) (“Although
aliens are protected by the Due Process and Equal Protection
Clauses, this protection does not prevent Congress from creating
legitimate distinctions . . . between citizens and aliens.”);
United States v. Huitron-Guizar, 678 F.3d 1164, 1170 (10th Cir.
2012) (“[C]ourts must defer to Congress as it lawfully exercises
its
constitutional
power
to
distinguish
between
citizens
and
non-citizens.”); cf. Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)
(“In the exercise of its broad power over naturalization and
immigration,
Congress
regularly
makes
unacceptable if applied to citizens.”).
rules
that
would
be
Thus, “[C]ongressional
classifications based on alienage are subject to rational basis
review.”
Cir.
United States v. Ferreira, 275 F.3d 1020, 1025 (11th
2001)
(emphasis
omitted);
accord
Shalala, 189 F.3d 598, 605 (7th Cir. 1999).
22
City
of
Chicago
v.
Appeal: 13-2011
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Section
Filed: 07/16/2014
2241(e)(2)
Pg: 23 of 33
survives
rational-basis
review,
a
“deferential” standard that asks only whether Congress had a
“reasonable basis for adopting the classification.”
734
F.3d
at
348.
§ 2241(e)(2),
That
as
the
“reasonable
statute
is
basis”
meant
interference in our nation’s war on terror.
is
to
Wilkins,
evident
limit
for
court
See Hamad, 732 F.3d
at 1006 (explaining that provision was meant to “ensur[e] that
members of the armed forces are not unduly chilled in conducting
the war on terror by concerns about foreign nationals targeting
them with damages claims”); see also Mathews, 426 U.S. at 81
n.17 (describing how matters like “foreign relations, the war
power, and the maintenance of a republican form of government”
“are
so
exclusively
government
as
to
be
entrusted
largely
to
the
immune
political
from
branches
of
inquiry
or
judicial
interference” (quotation marks omitted)).
In other contexts, courts have approved of Congress’ use of
citizenship as a proxy for situations likely to involve foreign
terrorism, which in turn trigger special concerns relating to
foreign affairs and immigration.
See, e.g., United States v.
Lue,
1998)
134
concluded
F.3d
that
79,
a
87
(2d
hostage
Cir.
taking
(“Congress
within
our
rationally
jurisdiction
involving a noncitizen is sufficiently likely to involve matters
implicating foreign policy or immigration concerns as to warrant
a federal criminal proscription.”).
23
The same principle applies
Appeal: 13-2011
here:
Doc: 33
Filed: 07/16/2014
Congress
could
Pg: 24 of 33
rationally
conclude
that
litigation
involving non-citizen combatants poses a special risk of raising
foreign relations, immigration, or military-related matters that
courts are usually not equipped to address.
Therefore, Congress
appropriately confined those issues to other proceedings more
closely tied to the political branches, while affording broader
relief
to
citizens
(who
do
not
present
foreign
relations
issues).
In
addition,
consistent
enemy
with
aliens
the
the
during
decisions
that
long-standing
times
of
Congress
made
differential
war,
see,
e.g.,
here
are
treatment
of
Johnson
v.
Eisentrager, 339 U.S. 763, 769–77 (1950), and reflect a rational
Congressional attempt to deal with the threat of overburdened
courts in a piecemeal fashion, Helton v. Hunt, 330 F.3d 242, 246
(4th Cir. 2003) (explaining that legislatures are free to act
“one step at a time, addressing . . . the phase of the problem
which seems most acute to the legislative mind” (quotation marks
omitted)).
Ameur has not attempted to address any of these genuine
interests.
Instead, he focuses on whether the classification
was narrowly tailored.
“[U]nder rational basis review, however,
the classification need not be the most narrowly tailored means
available to achieve the desired end.”
24
Zehner, 133 F.3d 459 at
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Doc: 33
463.
Filed: 07/16/2014
Accordingly,
Ameur’s
Pg: 25 of 33
equal
protection
argument
lacks
merit.
4.
Lastly,
§ 2241(e)(2)
is
not
a
bill
of
attainder.
“A
legislative act is an unconstitutional bill of attainder if it
singles
out
an
individual
or
narrow
class
punishment without a judicial proceeding.”
of
persons
for
Lynn v. West, 134
F.3d 582, 594 n.11 (4th Cir. 1998); see also United States v.
Dorlouis,
107
F.3d
248,
257
(4th
Cir.
1997)
(“A
Bill
of
Attainder is a legislative determination of guilt which metes
out
punishment
general
to
tests
named
to
individuals.”).
determine
whether
Courts
a
apply
statutory
qualifies as a prohibited bill of attainder:
three
provision
(1) a “historical”
test that looks to traditional forms of legislative punishment,
(2) a “functional” test that looks to the purposes served by the
bill,
and
(3)
a
“motivational”
legislative motives.
test
that
looks
to
actual
See, e.g., ACORN v. United States, 618
F.3d 125, 136 (2d Cir. 2010); accord Citizens for Equal Prot. v.
Bruning,
clearest
455
F.3d
proof
859,
869
could
(8th
Cir.
suffice
2006).
to
“[O]nly
establish
the
the
unconstitutionality of a statute [on the ground that it is a
bill of attainder].”
Communist Party of the U.S. v. Subversive
Activities Control Bd., 367 U.S. 1, 82–83 (1961).
25
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Pg: 26 of 33
Section 2241(e)(2) is not a bill of attainder under any of
these tests.
Ameur
posits
that
precluding
persons
from
appearing
in
courts amounts to a historic form of punishment, but does not
point
to
any
case
involving
a
channeling
provision
that
precludes particular types of claims from being brought.
Such
jurisdictional limits are usually not viewed as a traditional
“punishment.”
See
Hamad,
732
F.3d
at
1004
(“Jurisdictional
limitations . . . do not fall within the historical meaning of
legislative punishment.”); Scheerer v. U.S. Att’y Gen., 513 F.3d
1244,
1253
n.9
(11th
Cir.
2008)
(declining
to
find
that
“jurisdictional rule” amounted to bill of attainder); Nagac v.
Derwinksi, 933 F.2d 990, 990-91 (Fed. Cir. 1991) (same).
As to the functional test, a statute passes that standard
when
it
“reasonably
can
legislative purposes.”
425, 475-76 (1977).
be
said
into
further
nonpunitive
Nixon v. Admin. of Gen. Servs., 433 U.S.
As we have already explained, § 2241(e)(2)
serves several legitimate ends:
matters
to
military
courts,
it channels military-related
keeps
federal
courts
out
of
complicated foreign affairs questions, and limits the burdens
that
could
flow
from
an
unlimited
right
of
litigation
for
detainees.
And
test.
Section 2241(2)
Ameur
points
to
passes
muster
nothing
26
in
under
the
the
motivational
legislative
history
Appeal: 13-2011
Doc: 33
indicating
a
Filed: 07/16/2014
punitive
Pg: 27 of 33
purpose.
Though
he
contends
that
the
statute was passed with the intent to “reverse the holdings of
the Supreme Court” (Appellant’s Opening Br. 30), these types of
legislative overrides are unobjectionable so long as they stay
within constitutional bounds –- and such congressional changes
happen often.
See, e.g., Rivers v. Roadway Exp., Inc., 511 U.S.
298, 305 n.5 (1994) (“Congress frequently ‘responds’ to judicial
decisions
construing
reasons.”).
with
statutes,
and
does
so
for
a
variety
of
More to the point, statements of mere disagreement
previous
Supreme
Court
decisions
do
not
“punitive” intent toward an individual or group.
establish
And, in any
event, these kinds of statements would be insufficient evidence
on their own.
See Selective Serv. Sys. v. Minn. Pub. Interest
Research Grp., 468 U.S. 841, 855 n.15 (1984) (explaining that
“isolated” statements from legislators “do not constitute the
unmistakable
evidence
of
punitive
intent”
required
(quotation
mark omitted)).
Finally, we observe that § 2241(e)(2) does not meet the
“naming” or “specificity” requirement for bills of attainder.
“A
statute
attaches
not
with
to
open-ended
specified
applicability,
organizations
i.e.,
but
to
one
that
described
activities in which an organization may or may not engage, does
not single out a particular person or group for punishment.”
Hettinga v. United States, 677 F.3d 471, 477 (D.C. Cir. 2012)
27
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Doc: 33
Filed: 07/16/2014
(quotation marks omitted).
to
past
and
future
Pg: 28 of 33
The statute at issue here attaches
conduct,
not
status
status, like past conduct alone).
(or
some
proxy
After all, the statute is
triggered by unlawful combat against the United States.
parte
Quirin,
317
U.S.
1,
30–31
(1942)
classification
makes
us
even
See Ex
(explaining
difference between lawful and unlawful combatants).
ended
for
more
the
This open-
certain
that
§ 2241(e)(2) is not a bill of attainder.
* * *
Section
2241(e)(2)
is
constitutional.
Therefore,
it
satisfies the first prong of the severance standard.
B. Independent Function
Ameur
next
independently
suggests
because
it
that
renders
2241(e)(2)
cross-references
may not be currently valid.
cross-reference
§
the
cannot
other
function
statutes
that
But he never explains why a mere
whole
section
ineffective.
And,
indeed, a reference-by-reference analysis reveals no reason to
doubt
§
2241(e)(2)’s
independent
vitality
as
a
stand-alone
statute.
For instance, it does not matter that § 2241(e)(2) refers
in its first clause to the DTA.
provisions
are
no
longer
True, the two referenced DTA
operative:
Congress
repealed
one
paragraph and the D.C. Circuit -- the only circuit entitled to
hear DTA claims -- nullified the other.
28
See Bismullah, 551 F.3d
Appeal: 13-2011
at
Doc: 33
1075
Filed: 07/16/2014
(finding
that
Pg: 29 of 33
Boumediene
invalidated
DTA
section
1005(e)(2) because Congress would not have intended DTA review
to
supplement
Authorization
an
Act
existent
for
habeas
Fiscal
Year
remedy);
2010,
National
Pub.
L.
Defense
111–84,
Stat. 2190, 2612 (repealing DTA section 1005(e)(3)).
123
But those
changes only have the effect of mooting the “except” language in
§
2241(e)(2)’s
entirety.
introductory
clause,
not
§
2241(e)(2)
in
its
Put differently, changes in the DTA have simplified
§ 2241(e)(2):
courts
no
longer
need
ask
whether
a
suit
that
falls within the ambit of § 2241(e)(2) might instead be brought
under the DTA.
The “other action” language -- which must be read as the
converse
of
§
2241(e)(1)’s
habeas
defeat § 2241(e)(2)’s independence.
language
--
also
does
not
“A subsection of a statute
is capable of functioning independently as a fully operative
law,
even
if
it
must
be
understood
by
reference
to
an
inoperative portion of the statute in order for its meaning to
be
clear.”
citation,
Hamad,
and
732
alteration
F.3d
at
omitted).
1001-02
The
(quotation
marks,
cross-reference
to
§ 2241(e)(1) serves merely a definitional purpose and does not
negate § 2241(e)(2) by association.
See, e.g., Leavitt v. Jane
L., 518 U.S. 137, 142 (1996) (finding that one section’s crossreference to earlier, invalid section did not establish “such
29
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Filed: 07/16/2014
Pg: 30 of 33
‘interdependence’ that [the later section] becomes ‘purposeless’
when [the earlier section] is unenforceable”).
Finally, it does not matter that the Government now uses
the
designation
“unprivileged
enemy
belligerent”
for
persons
similarly situated to Ameur, rather than denominating them as
“enemy combatants.”
designation
as
10 U.S.C. § 948a.
an
“enemy
combatant,”
triggered by that designation.
an
independent
statute
Ameur acknowledges his
and
and
§
2241(e)(2)
is
Section 2241(e)(2) functions as
meets
the
second
prong
of
the
severability test.
C. Congressional Objective
Independence
aside,
Ameur
also
argues
that
allowing
§ 2241(e)(2) to stand alone would be inconsistent with Congress’
basic
objectives
in
enacting
the
MCA.
Again,
we
disagree.
“Congress’s overriding goal” in passing the MCA “was to limit
the judicial review available to detainees.”
Bismullah, 551
F.3d at 1073; see also H.R. Rep. No. 109–664, pt. 1, at 27
(2007)
“make
(congressional
clear”
that
committee
detainee
indicating
review
was
that
limited
it
to
wished
two
to
narrow
contexts); cf. Lebron, 670 F.3d at 554-55 (detailing Congress’
efforts
to
constrain
security concern).
judicial
review
in
areas
of
national
“Congress designed the direct review regime
to limit judicial intervention and to consolidate review in one
forum.”
Basardh, 545 F.3d at 1071.
30
Therefore, we doubt that
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Pg: 31 of 33
Congress would prefer to open the floodgates to all sorts of
detainee-related litigation merely because Boumediene required
courts
to
allow
one
narrow
sub-class
of
cases
under
the
Suspension Clause, a provision that does not even apply here.
Ameur’s
view
is
contention
also
without
that
legislative
merit.
To
history
declare
a
supports
provision
his
non-
severable, legislative history must make it “evident that the
Legislature would not have enacted those provisions which are
within its power, independently of that which is not.”
Co., 368 F.3d at 400 (quotation marks omitted).
Pittston
Here, Ameur
cites just one instance where Congress removed a severability
clause from the MCA and another when Congress refused to adopt
one.
As
the
Government
notes,
both
instances
amendments in the nature of a substitution.
19,928,
19,948
(2006)
(passing
amendment
involved
See 152 Cong. Rec.
without
severability
clause); id. at 19,970 (rejecting amendment with severability
clause).
We cannot say that Congress was focused on a minor
provision
(that
wholesale
changes
importantly,
is,
to
the
severability
the
broader
“congressional
clause)
statutory
inaction
while
making
scheme.
More
lacks
persuasive
significance because several equally tenable inferences may be
drawn
from
such
inaction,
including
the
inference
that
the
existing legislation already incorporated the offered change.”
United
States
v.
Craft,
535
U.S.
31
274,
287
(2002)
(quotation
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Filed: 07/16/2014
Pg: 32 of 33
marks and alteration omitted); see also Red Lion Broad. Co. v.
FCC, 395 U.S. 367, 382 n.11 (1969) (“[U]nsuccessful attempts at
legislation are not the best guides to legislative intent.”);
Tenneco Inc. v. Pub. Serv. Comm’n of W. Va., 489 F.2d 334, 338
(4th
Cir.
1973)
(refusing
to
draw
an
adverse
inference
from
Congress’ refusal to enact particular legislative provision).
Lastly,
Ameur’s
argument
invites
us
to
from the absence of a severability clause.
draw
conclusions
But “the ultimate
determination of severability will rarely turn on the presence
or absence of such a clause.”
U.S. 570, 585 n.27 (1968).
silence
--
and
severability.”
does
United States v. Jackson, 390
“Congress’ silence is just that --
not
raise
a
presumption
against
Alaska Airlines, Inc. v. Brock, 480 U.S. 678,
686 (1987).
Section
2241(e)(2)
§ 2241(e)(1).
We
is
reject
a
severable
all
of
Ameur’s
statute
arguments
from
to
the
contrary.
V.
The parties raise several additional points, which we find
unnecessary
to
address
in
light
of
our
conclusion
that
the
district court lacked jurisdiction over the complaint under the
MCA.
See, e.g., Golden & Zimmerman, LLC v. Domenech, 599 F.3d
426, 433 n.2 (4th Cir. 2010) (“Because we have concluded that
32
Appeal: 13-2011
Doc: 33
Filed: 07/16/2014
Pg: 33 of 33
the district court was correct in finding that it did not have
subject matter jurisdiction . . ., we need not address [these]
alternative argument[s].”).
the
law,
and
when
it
“Jurisdiction is power to declare
ceases
to
exist,
the
only
function
remaining . . . is that of announcing the fact and dismissing
the cause.”
Steel Co., 523 U.S. at 94.
VI.
For
these
dismissing
reasons,
Ameur’s
the
complaint
decision
for
of
lack
the
of
district
subject
court
matter
jurisdiction is
AFFIRMED.
33
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