Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge.
As part of its global war on terrorism, the United States detained Abdul Rahim Abdul Razak al Janko in Afghanistan and at United States Naval Station Guantanamo Bay (Guantanamo) in Cuba for seven years before the district court granted him a writ of habeas corpus and ordered that diplomatic efforts be undertaken to secure his release. He now seeks to recover for injuries sustained during his detention. Because the Congress has, in unmistakable language, denied the district court jurisdiction to entertain his claims, we affirm the dismissal of his claims.
The Appellant is a Syrian citizen who alleges that he travelled to Afghanistan in January 2000. Shortly thereafter, the Taliban forced him to confess to spying for
The Appellant sought to obtain release from detention by filing a petition for a writ of habeas corpus in district court. After the Supreme Court decided that Guantanamo detainees have a constitutional right to challenge the basis of their detentions, Boumediene v. Bush, 553 U.S. 723, 771, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), the district court granted his petition, Al Ginco v. Obama, 626 F.Supp.2d 123, 130 (D.D.C.2009), and the United States released him in October 2009. Nearly one year later, he filed a complaint in district court against the United States and twenty-six U.S. officials (collectively Government) for injuries he suffered during his detention. His complaint, as amended, stated claims under the Alien Tort Statute, 28 U.S.C. § 1350; the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.; the Enforcement Act of 1871, 42 U.S.C. § 1985; and for violation of his Fourth and Fifth Amendment rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Holding that, inter alia, section 7(a) of the Military Commissions Act of 2006(MCA), Pub.L. No. 109-366, § 7(a), 120 Stat. 2600, 2635 (codified at 28 U.S.C. § 2241(e) (2006)), ousted it of jurisdiction, the district court dismissed the Appellant's claims. Janko v. Gates, 831 F.Supp.2d 272,
"We review de novo the district court's grant of a motion to dismiss for lack of subject matter jurisdiction." Oakey v. U.S. Airways Pilots Disability Income Plan, 723 F.3d 227, 231 (D.C.Cir. 2013). Because the Government has not disputed the facts relevant to jurisdiction, we accept the Appellant's allegations as true and review only the district court's application of the law. See Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197-98 (D.C.Cir.1992).
The question presented in this appeal is whether the district court has jurisdiction over all, or any, of the Appellant's claims. "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute...." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Because the Appellant's claims raise questions of federal law, they are within the district court's constitutional jurisdiction. See Osborn v. Bank of the U.S., 22 U.S. (9 Wheat.) 738, 823-24, 6 L.Ed. 204 (1824) (Marshall, C.J.). Our task, then, is to decide whether the Congress has conferred authority on the district court to hear his claims and, if it has not, whether the Congress has constitutional authority to withhold jurisdiction.
The first question turns on the meaning of section 7(a) of the MCA. That section provides:
28 U.S.C. § 2241(e) (2006). In Al-Zahrani v. Rodriguez, we held that section 2241(e)(2) withdraws the district court's jurisdiction over damages actions regarding any aspect of the detention of an alien previously determined by a CSRT to be properly detained as an enemy combatant. 669 F.3d 315, 318-19 (D.C.Cir.2012); see also Hamad v. Gates, 732 F.3d 990, 995-96 (9th Cir.2013); cf. Al-Nashiri v. MacDonald, No. 12-35475, 741 F.3d 1002, 1006-07, 2013 WL 6698066, at *3 (9th Cir. Dec. 20, 2013). Although the Al-Zahrani holding covers the Appellant's claims, he argues that the fact that he obtained a writ of habeas corpus, which the Al-Zahrani detainees did not, moves his claims outside section 2241(e)(2)'s ambit. And even if it does not, he argues, section 2241(e)(2) is unconstitutional as applied to his claims. We consider each argument in turn.
"The preeminent canon of statutory interpretation requires us to `presume that [the] legislature says in a statute what it means and means in a statute what it says there.' Thus, our inquiry begins with the statutory text, and ends there as well if
28 U.S.C. § 2241(e)(2) (emphasis added). This action is undoubtedly an action (1) other than habeas corpus or direct review of a CSRT determination (2) against the United States or its agents (3) brought by an alien (4) previously detained by the United States, which action (5) relates to an aspect of his detention. The crux of the parties' dispute is whether the Appellant was "determined by the United States to have been properly detained as an enemy combatant." Id. (emphasis added).
The Government argues that the statute bars the Appellant's claims because "the United States" means only "the Executive Branch." Because the CSRT is an executive-branch tribunal, the Government contends that the first CSRT's determination that the Appellant was properly detained triggered the jurisdictional bar. The Appellant, citing to a dictionary and to cases interpreting unrelated statutes, argues that "the United States" ordinarily encompasses all three branches of the federal government and not solely the Executive Branch. He argues that the bar does not apply to him because the district court's grant of the writ is a determination by the United States "that he was never properly detained as an enemy combatant." Pl.-Appellant's Opening Br. 2 (Janko Br.), Janko v. Gates, No. 12-5017 (D.C.Cir. Jan. 9, 2013) (emphasis in original).
The Appellant is of course correct that, in the absence of a statutory definition, we give statutory language its "ordinary or natural meaning." FDIC v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); see also Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246, 252, 124 S.Ct. 1756, 158 L.Ed.2d 529 (2004). The rule emanates from the common-sense notion that the Congress, like any speaker, desires to be understood and, "in the absence of contrary indication," Freeman v. Quicken Loans, Inc., ___ U.S. ___, 132 S.Ct. 2034, 2042, 182 L.Ed.2d 955 (2012), uses words in the way they are ordinarily used and understood, see Watson v. United States, 552 U.S. 74, 79, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007); Maillard v. Lawrence, 57 U.S. (16 How.) 251, 261, 14 L.Ed. 925 (1853). But "plain meaning" takes us only so far. Because many words are susceptible of multiple meanings, plain meaning is frequently not so plain. The expression "the United States" is a case in point. Those words in a newspaper article about World Cup competition — "the United States took an early
If "the United States" seems "ambiguous in isolation," it is "clarified by the remainder of the statutory scheme[] because the same terminology is used elsewhere in a context that makes its meaning clear...." United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988). The statute applies to any alien "detained by the United States" and "determined by the United States to have been properly detained as an enemy combatant." 28 U.S.C. § 2241(e)(2) (emphases added). In light of the "established canon of construction that similar language contained within the same section of a statute must be accorded a consistent meaning," the Congress's use of the same words to describe the detaining authority and the authority responsible for making the propriety-of-detention determination leads us to conclude that they are one and the same. Nat'l Credit Union Admin. v. First Nat'l Bank & Trust Co., 522 U.S. 479, 501, 118 S.Ct. 927, 140 L.Ed.2d 1 (1998); see also Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007). As the Congress well understood when it enacted the MCA, the detention of aliens as enemy combatants is an exclusively executive function. See Boumediene, 553 U.S. at 782-83, 128 S.Ct. 2229 (distinguishing between those "detained by executive order" at Guantanamo and those held pursuant to criminal sentence); Hamdi, 542 U.S. at 516-17, 124 S.Ct. 2633 (holding AUMF gives "the Executive ... the authority to detain citizens who qualify as `enemy combatants'"); Rasul v. Bush, 542 U.S. 466, 475, 483 n. 15, 485, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (recognizing that detainees at Guantanamo are in exclusively executive detention); Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed.Reg. 57,833, 57,834 (Nov. 13, 2001) (executive order authorizing detention of enemy combatants); see also Oral Argument 13:17, Janko v. Gates, No. 12-5017 (D.C.Cir. Oct. 22, 2013) (The Appellant's counsel conceding that "courts ordinarily don't detain people so the reference to `the United States' in terms of an `alien detained by the United States' ordinarily" refers to the Executive Branch); cf. Uthman v. Obama, 637 F.3d 400, 402 (D.C.Cir. 2011). Because the detaining authority referred to as "the United States" in section 2241(e)(2) is exclusively the Executive Branch, and the determination triggering the jurisdictional bar is made by the detaining authority, a "determin[ation] by the United States" is one made by the Executive Branch.
Section 2241(e)(1), enacted as part of the same statutory subsection, confirms
Finally, we find support for our interpretation in the version of section 2241(e)(2) which the MCA amended. See Johnson v. United States, 529 U.S. 694, 710, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000) ("[W]hen a new legal regime develops out of an identifiable predecessor, it is reasonable to look to the precursor in fathoming the new law."); see also Hamilton v. Rathbone, 175 U.S. 414, 421, 20 S.Ct. 155, 44 L.Ed. 219 (1899). The Congress originally added 28 U.S.C. § 2241(e) to the U.S.Code in section 1005(e) of the Detainee Treatment Act (DTA) of 2005, Pub.L. 109-148, § 1005, 119 Stat. 2739, 2742-43. Section 1005(e)(2) granted this Court exclusive jurisdiction to review CSRT determinations, see Bismullah v. Gates, 501 F.3d 178, 183 (D.C.Cir.2007), vacated and remanded on other grounds by 554 U.S. 913, 128 S.Ct. 2960, 171 L.Ed.2d 881 (2008), and section
Responding to the Supreme Court's interpretation of section 1005(e) of the DTA, see Hamdan v. Rumsfeld, 548 U.S. 557, 572-84, 126 S.Ct. 2749, 165 L.Ed.2d 723 (2006), the Congress amended 28 U.S.C. § 2241(e) in the MCA. Despite retaining our review of CSRT determinations, see MCA § 7(a), 120 Stat. at 2636 (excepting from jurisdictional bar actions brought under "paragraph[](2) ... of section 1005(e) of the" DTA), section 7(a) replaced both "the Department of Defense" (the detaining authority) and the "D.C. Circuit" (the relevant status determiner) with "the United States," compare DTA § 1005(e)(1), 119 Stat. at 2742, with MCA § 7(a), 120 Stat. at 2635-36. The change is significant. Under the DTA, the relevant propriety-of-detention determination was made by a tribunal (the D.C. Circuit) independent of the detaining authority (the Department of Defense). Under the MCA, however, the Congress abandoned the independent, judicial propriety-of-detention determination in favor of a non-judicial determination made by the same entity that detains the alien (the United States). Adopting the Appellant's interpretation would deprive the changes made by section 7(a) of any "real and substantial effect" and flout the Congress's manifest intent to have section 2241(e)(2)'s applicability turn on a non-judicial status determination. Stone v. INS, 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).
The Appellant counters our interpretation by arguing that we effectively read "properly" out of the statute. His contention rests on the belief that the statute bars claims only from detainees who received "proper" CSRT determinations, to wit, those detainees who in fact are enemy combatants. A CSRT determination is "proper," apparently, if a habeas court subsequently reaches the same conclusion. Because the district court in Al Ginco disagreed with the Appellant's two CSRTs, he argues that he is not in fact an enemy combatant and section 2241(e)(2) does not apply.
The Appellant's argument results in a very subtle rewriting of the statute. The statute applies to an alien "determined by the United States to have been properly detained as an enemy combatant." 28 U.S.C. § 2241(e)(2) (emphasis added). He
The Appellant protests that if the bar applies even to incorrect CSRT determinations, then it applies to every person detained by the United States under the AUMF. He argues that every detained alien has at least once been determined by someone in the Executive Branch — a soldier or an intelligence operative in the field, for example — to be an enemy combatant. Cf. Boumediene, 553 U.S. at 783, 128 S.Ct. 2229 (characterizing "the CSRT process as direct review of the Executive's battlefield determination that the detainee is an enemy combatant"). If that determination is enough, he argues, the mere fact of capture bars all claims for detention-related injuries, a result the Congress could not possibly have intended.
We need not decide today the full extent of the meaning of "the United States." In holding that section 2241(e)(2) barred claims brought on behalf of aliens determined by CSRTs to have been properly detained, Al-Zahrani necessarily held that a CSRT determination is a determination "by the United States," see Al-Zahrani, 669 F.3d at 317, 319, and we are bound by that holding, see LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc). Moreover, whatever else "the United States" meant in 2006, "the contextual background against which Congress was legislating, including relevant practices of the Executive Branch which presumably informed Congress's decision, prior legislative acts, and historical events" makes clear that the words undoubtedly encompassed CSRTs. United States v. Wilson, 290 F.3d 347, 354 (D.C.Cir.2002); see also Nat'l Lead Co. v. United States, 252 U.S. 140, 147, 40 S.Ct. 237, 64 L.Ed. 496 (1920) (citing United States v. Bailey, 34 U.S. (9 Pet.) 238, 256, 9 L.Ed. 113 (1835)) (Story, J.).
Apparently concerned about what the Supreme Court's Hamdi and Rasul decisions
Having determined that the statute applies to the Appellant, we must now decide whether its application is constitutional.
Finally, citing to United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871), the Appellant argues that section 2241(e)(2) unconstitutionally encroaches on the judiciary's Article III authority by mandating a particular result in his case. The Supreme Court in Klein struck down a statute because, inter alia, it purported to "prescribe rules of decision to the Judicial Department ... in cases pending before it" and therefore "passed the limit which separates the legislative from the judicial power." Klein, 80 U.S. (13 Wall.) at 146, 147. Although Klein is a bit of a constitutional Sphinx, we need not play Oedipus today. Klein applies where the Congress prescribes the outcome of pending litigation, id. at 146; see also United States v. Sioux Nation of Indians, 448 U.S. 371, 404, 100 S.Ct. 2716, 65 L.Ed.2d 844 (1980), by means other than amending the applicable law, Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (quoting Robertson v. Seattle Audubon Soc'y, 503 U.S. 429, 441, 112 S.Ct. 1407, 118 L.Ed.2d 73 (1992)). Enacted as an amendment to 28 U.S.C. § 2241(e)(2) more than four years before the Appellant filed his suit, section 7(a) of the MCA does not fit the bill.
It may very well be that to deny the Appellant recovery for injuries incurred while in the United States's custody based solely on the unreviewed decision of a tribunal the Supreme Court has labeled "closed and accusatorial" is rough justice. Boumediene, 553 U.S. at 785, 128 S.Ct. 2229 (quotation marks omitted). But that
For the foregoing reasons, the judgment of the district court is
Affirmed.