Ninth Circuit: No Subject-Matter Jurisdiction In Hamad v. Gates

By Raffaela Wakeman
Tuesday, October 8, 2013, 6:47 AM

The Ninth Circuit Court of Appeals has issued its memorandum opinion in Hamad v. Gates, a challenge by a former Guantanamo detainee to his detention and treatment while in U.S. custody. It found that §2241(e)(2) of the Detainee Treatment Act strips it of any jurisdiction to hear Hamad's claims. We've written about the questions presented in this case before, most recently when the government submitted supplemental authority supporting its position that the Ninth Circuit lacks subject-matter jurisdiction over the case.

Adel Hassan Hamad, a Sudanese national, was captured in 2002 in Pakistan by Pakistani security forces, later transferred to Bagram Airfield and then to Guantanamo. A Combatant Status Review Board determined in March 2005 that Hamad was an "enemy combatant." Another board later that year classified him as eligible for transfer to Sudan, a transfer which was completed after the U.S. and Sudan reached an agreement on the terms in 2007.

Hamad later sued more than 100 federal officials, including then-Secretary of Defense Robert Gates for money damages in a federal district court in Washington State. Hamad made seven claims in his suit under the Constitution, state common law and the Alien Tort Statute: prolonged arbitrary detention; cruel, inhuman or degrading treatment; torture; targeting of a civilian; denial of due process, forced disappearance, and violation of due process under the Fifth Amendment.

In the district court below, all defendants besides Robert Gates were dismissed for lack of personal jurisdiction. The court granted a government motion to substitute it for Secretary Gates, and it dismissed the international law claims against the government. This left a single claim remaining: that Secretary Gates violated Hamad's Fifth Amendment due process claims. This the district court also dismissed, on grounds that Hamad had failed to plausibly allege that Secretary Gates was personally involved in the violation of his rights. Bobby and Jonathan Chafetz of Seton Hall had a mini-debate of sorts on Lawfare about the district court's conclusions regarding qualified immunity.

The Ninth Circuit sweeps away Hamad's two arguments: first, that the Supreme Court's decision in Boumediene v. Bush struck down §2241(e)(2) when it invalidated §2241(e)(1), the provision of the Detainee Treatment Act stripping courts of jurisdiction over non-habeas challenges from Guantanamo detainees; and in the alternative, that if §2241(e)(2) provision remains in the aftermath of Boumediene,  it cannot be severed from §2241(e)(1). Circuit Judge Sandra Ikuta says of Boumediene's reach:

the Supreme Court took pains to emphasize that it was invalidating § 2241(e) only to the extent that the statute barred the petitioners from filing habeas corpus actions: “[o]ur decision today holds only that petitioners before us are entitled to seek the writ; that the DTA review procedures are an inadequate substitute for habeas corpus; and that petitioners in these cases need not exhaust the review procedures in the Court of Appeals before proceeding with their habeas actions in the District Court.”

To Hamad's second argument, regarding severability, the court walks through the severability analysis laid out in United States v. Booker: it is required to leave intact portions of the statute that are "(1) constitutionally valid, (2) capable of functioning independently, and (3) consistent with Congress' basic objectives." The court finds that §2241(e)(2) can function independently of §2241(e)(1), given the provisions' separate foci on non-habeas challenges and habeas petitions, respectively. It then concludes that §2241(e)(2) addresses Congress's basic objectives, given its sweeping language, it demonstrates that Congress was:

. . . not concerned solely with habeas suits, but also sought to prevent alien detainees from bringing any other type of action that related to their detention or treatment. Considering that the two sections of § 2241(e) address two different types of lawsuits, we see no reason that Congress would not have enacted § 2241(e)(2)’s bar on non- habeas suits had it known that detainees could file for habeas.

The court similarly does away with Hamad's arguments regarding the constitutionality of §2241(e)(2). First, since Hamad sought only money damages, which are "not required for every violation of constitutional rights," the Ninth Circuit is not required to address whether or not the provision is constitutional. Nor is §2241(e)(2) an unconstitutional bill of attainder, the court finds, as it does not inflict "legislative punishment" and Congress had no "punitive intent" in enacting the provision.

The last argument Hamad makes relates to the provision's constitutionality under the Due Process clause of the Fifth Amendment. On this matter, the court concludes that Congress's choice to limit only alien detainees from bringing damage actions passes rational basis review, and is neither arbitrary nor irrational.

The appeals court vacated the district court's orders and remanded the case to the district court for a judgment dismissing Hamad's suit.