Filed: Jul. 16, 2014
Latest Update: Mar. 02, 2020
Summary: 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,
Summary: 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, i..
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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, United States military personnel detained
suspected terrorist Mammar Ameur at a 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 other
federal officials allegedly involved in his detention. 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 and abuse
during each of his various detentions and transfers. 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.” Janko, 741 F.3d at 138 n.2 (quotation marks
omitted). 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. Then, finding that many of the
decisions described in Ameur’s complaint were made at the
Pentagon, the district court transferred the case to the Eastern
District of Virginia.
Once the case was transferred, Ameur filed an amended
complaint. This amended complaint reasserted claims against all
the 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 for all defendants as to Ameur’s
claims under the Alien Tort Claims Act. The Government
certified that the defendants were federal employees acting
within the scope of their employment when they performed the
acts alleged in Ameur’s complaint. See 28 U.S.C. § 2679(d).
6
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 and his claims concerned his treatment in
detention.
Id. at 910–13; see also 28 U.S.C. § 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. When a district court dismisses for lack of
subject matter 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.” In re KBR, Inc., Burn Pit Litig.,
744 F.3d
326, 333 (4th Cir. 2014) (quotation marks and alteration
omitted). We must decide this jurisdictional issue before any
others. 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 habeas corpus, which is discussed in the preceding
subsection, § 2241(e)(1). 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.” See
Janko, 741
F.3d at 144 (holding that a CSRT 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. No. 109–148, § 1005(e)(2)–(3), 119 Stat. 2680, 2741–42
(2005).
9
Conceding that his claims come within the plain terms of
§ 2241(e)(2), Ameur instead argues that the jurisdiction-
stripping provision is invalid. He posits 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), which has been expressly declared
unconstitutional. We address these arguments in turn.
III.
Initially, Ameur contends that the Supreme Court expressly
struck down § 2241(e)(2) in Boumediene. We disagree.
In Boumediene, the Supreme Court 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. For
that reason, Boumediene did not address the validity of
§ 2241(e)(2). 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 (1977) (explaining that the
11
Suspension Clause is violated only where habeas corpus is
rendered “inadequate or ineffective”).
Even so, Ameur seizes on some of the Court’s broader
language –- for instance, the quotation 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 Supreme Court was addressing only
§ 2241(e)(1).”); Al-Zahrani v. Rodriguez,
669 F.3d 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 effective-
date 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 alternative, Ameur argues that Boumediene
invalidated § 2241(e)(2) by implication in striking down
§ 2241(e)(1). 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.” Basardh
v. Gates, 545 F.3d 1068, 1072 (D.C. Cir. 2008). 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 intent”). “Because the unconstitutionality of a
part of an Act does not necessarily defeat or affect 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 unless we
encounter one of three limited circumstances. 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.”
Id. at 259.
Ameur suggests that all three of these limited
circumstances exist here. We find that none of the arguments
that Ameur proffers has merit.
A. Constitutional Validity
Ameur raises four distinct challenges to § 2241(e)(2)’s
constitutionality. First, he suggests that the statute
unconstitutionally deprives him of access to courts. 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 says that the section amounts to an
unconstitutional bill of attainder. All of these arguments
fail.
1.
Ameur first argues that Congress deprived him in
§ 2241(e)(2) of any forum for his purported 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. “[T]he Constitution does not
require the availability of such a remedy, even where the
plaintiff’s claim is based on alleged violations of
constitutional rights.” 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 whether to imply a Bivens action[,] [a]nd in each
instance it has decided against the existence of such 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 claim should be
recognized in these circumstances.”). 6 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 only possible remedy was
19
money damages, as “congressionally uninvited intrusion into
military affairs by the judiciary is inappropriate.” 483 U.S.
at 683. “It is irrelevant,” the Court explained, “whether the
laws currently on the books afford Stanley, or any other
particular serviceman, an ‘adequate’ federal remedy for his
injuries.”
Id. The Court’s readiness to withhold a money
damages remedy in Stanley -- even where it was “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 2241(e)(2) thus does not violate separation-of-
power principles or due process by denying Ameur access to
courts.
2.
Section 2241(e)(2) also does not reflect an
unconstitutional attempt on Congress’ part “to direct the
substantive outcome of litigation.” (Appellant’s Opening Br.
26.) 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). Section 2241(e)(2) does not speak to
any issue of fact or bind the Court to an independently
unconstitutional rule. More obviously, Klein speaks to pending
cases, and this case was not pending when Congress enacted
§ 2241(e)(2). 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 to
§ 2241(e)(2), noting that it applies only to aliens. 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 a suspect
classification such as race, religion, or gender.” Giarratano
v. Johnson, 521 F.3d 298, 303 (4th Cir. 2008).
21
Rational-basis review –- not strict scrutiny, as Ameur
argues –- is the correct standard to apply here. See, e.g.,
Hamad, 732 F.3d at 1005–06 (assessing § 2241(e)(2)’s
constitutionality under rational-basis test). Aliens detained
as enemy combatants enjoy no fundamental right to a money
damages remedy. 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 rules that would be
unacceptable if applied to citizens.”). Thus, “[C]ongressional
classifications based on alienage are subject to rational basis
review.” United States v. Ferreira,
275 F.3d 1020, 1025 (11th
Cir. 2001) (emphasis omitted); accord City of Chicago v.
Shalala,
189 F.3d 598, 605 (7th Cir. 1999).
22
Section 2241(e)(2) survives rational-basis review, a
“deferential” standard that asks only whether Congress had a
“reasonable basis for adopting the classification.” Wilkins,
734 F.3d at 348. That “reasonable basis” is evident for
§ 2241(e)(2), as the statute is meant to limit court
interference in our nation’s war on terror. 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 entrusted to the political branches of
government as to be largely immune from judicial inquiry or
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, 134 F.3d 79, 87 (2d Cir. 1998) (“Congress rationally
concluded that a hostage taking within our jurisdiction
involving a noncitizen is sufficiently likely to involve matters
implicating foreign policy or immigration concerns as to warrant
a federal criminal proscription.”). The same principle applies
23
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, the decisions that Congress made here are
consistent with the long-standing differential treatment of
enemy aliens during times of war, see, e.g., 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.” Zehner, 133 F.3d 459 at
24
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 of persons for
punishment without a judicial proceeding.” 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 to named individuals.”). Courts apply three
general tests to determine whether a statutory provision
qualifies as a prohibited bill of attainder: (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” test that looks to actual
legislative motives. See, e.g., ACORN v. United States,
618
F.3d 125, 136 (2d Cir. 2010); accord Citizens for Equal Prot. v.
Bruning,
455 F.3d 859, 869 (8th Cir. 2006). “[O]nly the
clearest proof could suffice to establish 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 be said to further nonpunitive
legislative purposes.” Nixon v. Admin. of Gen. Servs., 433 U.S.
425, 475-76 (1977). As we have already explained, § 2241(e)(2)
serves several legitimate ends: it channels military-related
matters into military courts, 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 Section 2241(2) passes muster under the motivational
test. Ameur points to nothing in the legislative history
26
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 statutes, and does so for a variety of
reasons.”). More to the point, statements of mere disagreement
with previous Supreme Court decisions do not establish
“punitive” intent toward an individual or group. 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 with open-ended applicability, i.e., one that
attaches not to specified organizations but to 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). The statute at issue here attaches
to past and future conduct, not status (or some proxy for
status, like past conduct alone). After all, the statute is
triggered by unlawful combat against the United States. See Ex
parte Quirin, 317 U.S. 1, 30–31 (1942) (explaining the
difference between lawful and unlawful combatants). This open-
ended classification makes us even more 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 suggests that § 2241(e)(2) cannot function
independently because it cross-references other statutes that
may not be currently valid. But he never explains why a mere
cross-reference renders the 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. True, the two referenced DTA
provisions are no longer operative: Congress repealed one
paragraph and the D.C. Circuit -- the only circuit entitled to
hear DTA claims -- nullified the other. See Bismullah, 551 F.3d
28
at 1075 (finding that Boumediene invalidated DTA section
1005(e)(2) because Congress would not have intended DTA review
to supplement an existent habeas remedy); National Defense
Authorization Act for Fiscal Year 2010, Pub. L. 111–84, 123
Stat. 2190, 2612 (repealing DTA section 1005(e)(3)). But those
changes only have the effect of mooting the “except” language in
§ 2241(e)(2)’s introductory clause, not § 2241(e)(2) in its
entirety. 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 language -- also does not
defeat § 2241(e)(2)’s independence. “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.” Hamad, 732 F.3d at 1001-02 (quotation marks,
citation, and alteration omitted). The 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 cross-
reference 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 as an “enemy combatant,” and § 2241(e)(2) is
triggered by that designation. Section 2241(e)(2) functions as
an independent statute and 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) (congressional committee indicating that it wished to
“make clear” that detainee review was limited to two narrow
contexts); cf.
Lebron, 670 F.3d at 554-55 (detailing Congress’
efforts to constrain judicial review in areas of national
security concern). “Congress designed the direct review regime
to limit judicial intervention and to consolidate review in one
forum.”
Basardh, 545 F.3d at 1071. Therefore, we doubt that
30
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 contention that legislative history supports his
view is also without merit. To declare a provision 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.” Pittston
Co., 368 F.3d at 400 (quotation marks omitted). 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 involved
amendments in the nature of a substitution. See 152 Cong. Rec.
19,928, 19,948 (2006) (passing amendment without severability
clause);
id. at 19,970 (rejecting amendment with severability
clause). We cannot say that Congress was focused on a minor
provision (that is, the severability clause) while making
wholesale changes to the broader statutory scheme. More
importantly, “congressional inaction 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. 274, 287 (2002) (quotation
31
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 draw conclusions
from the absence of a severability clause. But “the ultimate
determination of severability will rarely turn on the presence
or absence of such a clause.” United States v. Jackson, 390
U.S. 570, 585 n.27 (1968). “Congress’ silence is just that --
silence -- and does not raise a presumption against
severability.” Alaska Airlines, Inc. v. Brock,
480 U.S. 678,
686 (1987).
Section 2241(e)(2) is a severable statute from
§ 2241(e)(1). We reject all of Ameur’s arguments 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].”). “Jurisdiction is power to declare
the law, and when it 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 reasons, the decision of the district court
dismissing Ameur’s complaint for lack of subject matter
jurisdiction is
AFFIRMED.
33
