Adel Hamad v. Robert Gates
2013 U.S. App. LEXIS 20409
9th Cir.2013Background
- Adel Hassan Hamad, a Sudanese national, was detained by U.S. forces (after capture in Pakistan) and held at Bagram and Guantanamo; a CSRT in March 2005 designated him an enemy combatant and an ARB later recommended transfer; he was transferred to Sudan in 2007.
- In 2010 Hamad sued Robert Gates (in his individual capacity) and other U.S. military/civilian officials for money damages alleging prolonged arbitrary detention, torture and other violations under customary international law, the Geneva Conventions, common law, the Alien Tort Statute, and the Fifth Amendment.
- The district court dismissed all defendants except Gates for lack of personal jurisdiction, substituted the United States for Gates on international-law claims under the Westfall Act and dismissed those claims for lack of sovereign-waiver; it retained and then dismissed the Fifth Amendment claim for failure to plausibly allege Gates’ personal involvement.
- On appeal the Ninth Circuit addressed whether 28 U.S.C. § 2241(e)(2) (the MCA/DTA jurisdiction-stripping provision barring non-habeas actions related to detention/treatment of designated enemy combatants) deprived federal courts of subject-matter jurisdiction over Hamad’s damage claims.
- The Ninth Circuit analyzed statutory text, severability after Boumediene v. Bush, and constitutional challenges (including Suspension Clause, bill of attainder, equal protection/Fifth Amendment, and the need for a damages remedy).
- The court held that § 2241(e)(2) applies to Hamad’s claims, is severable from § 2241(e)(1), is not unconstitutional as applied to Hamad, and therefore the district court lacked subject-matter jurisdiction; the district court’s orders were vacated and the case remanded with instructions to dismiss for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2241(e)(2) bars non-habeas suits by enemy combatants for detention/treatment-related claims | Boumediene struck down § 2241(e) entirely or made (e)(2) inoperative; applying (e)(2) would deprive Hamad of any forum | § 2241(e)(2) by its plain terms bars "any other action" against the U.S. or its agents relating to detention/treatment of designated enemy combatants | § 2241(e)(2) applies to Hamad’s claims and deprives courts of jurisdiction over them |
| Whether Boumediene invalidated § 2241(e)(2) or only § 2241(e)(1) (habeas) | Boumediene’s reasoning struck down the whole subsection (e) or at least made (e)(2) nonfunctional | Boumediene addressed only the Suspension Clause problem in (e)(1); (e)(2) was not adjudicated and remains operative if severable and constitutional | Boumediene invalidated only the habeas-stripping portion (e)(1); it did not strike down (e)(2) |
| Whether § 2241(e)(2) is severable from the invalidated (e)(1) | The provisions cannot be severed; absence of severability clause and intertwined text show Congress intended them as a unit | Standard presumes severability; (e)(2) can function independently and aligns with Congress’s objective to limit detainees’ suits | § 2241(e)(2) is severable, can function independently, and is consistent with Congress’s objectives, so it survives severance analysis |
| Whether § 2241(e)(2) is unconstitutional as applied (Suspension Clause/bill of attainder/equal protection/need for damages remedy) | Denying a federal forum for constitutional violations is unconstitutional; (e)(2) is a punitive bill of attainder and discriminates against aliens without sufficient justification | Bivens and related precedent show money damages are not constitutionally required; jurisdictional bar is nonpunitive and rationally related to legitimate foreign-policy/war powers | § 2241(e)(2) is not unconstitutional as applied: it does not violate the Suspension Clause (Boumediene was limited), is not a bill of attainder, and survives rational-basis review under the Fifth Amendment for alienage classifications; money damages are not constitutionally required |
Key Cases Cited
- Boumediene v. Bush, 553 U.S. 723 (2008) (held Suspension Clause applies at Guantanamo and struck down MCA habeas-stripping provisions as an unconstitutional suspension of the writ)
- Hamdan v. Rumsfeld, 548 U.S. 557 (2006) (construed DTA and limits on judicial review of Guantanamo detainees and addressed application to pending cases)
- Rasul v. Bush, 542 U.S. 466 (2004) (held federal courts have jurisdiction to hear habeas challenges by Guantanamo detainees under then-existing law)
- Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (recognized detention authority over enemy combatants captured in conflict and due process rights of detainees)
- Bismullah v. Gates, 551 F.3d 1068 (D.C. Cir. 2009) (D.C. Circuit invalidated DTA §1005(e)(2) after Boumediene as inadequate substitute for habeas)
- Booker v. United States, 543 U.S. 220 (2005) (severability principles; courts should invalidate no more of a statute than necessary)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (jurisdictional dismissal principle: if jurisdiction is lacking, court must dismiss)