Ameur v. Gates, No. 13-2011 (4th Cir. 2014)
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Plaintiff filed suit under the Alien Tort Claims Act, 28 U.S.C. 1350, against former Secretary of Defense Robert Gates and other federal officials allegedly involved in his detention as a suspected terrorist. Plaintiff was determined to be an "enemy combatant" but was eventually released to his native country of Algeria. The court affirmed the district court's dismissal of the complaint for lack of subject matter jurisdiction under the Military Commissions Act of 2006, 28 U.S.C. 2241(e)(2).
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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. 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. 2 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. 3 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). 4 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. 5 Washington. 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). 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. 7 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. 8 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. See DTA, Pub. L. 2680, No. 109 148, § 1005(e)(2) (3), (2005). 9 119 Stat. 2741 42 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 10 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 Suspension Clause is 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. 12 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). 13 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 14 analysis. 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 15 valid. 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 16 without a forum for 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 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 circumstances, then surely 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 money damages, as 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 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 Rational-basis review - 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. Section 2241(e)(2) 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 here: Congress could 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 463. Accordingly, Ameur s 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 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 indicating a punitive 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 (quotation marks omitted). to past and future 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 at 1075 (finding that 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 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. 10 U.S.C. § 948a. Ameur acknowledges his designation enemy and as an combatant, triggered by that designation. an independent statute 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 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 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 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 district of subject court matter jurisdiction is AFFIRMED. 33
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