Al-Marri v. Rumsfeld

• Decision Date: 08 March 2004
• Docket Number: No. 03-3674.,03-3674.
• Citation: 360 F.3d 707
• Parties: Ali Saleh Kahlah AL-MARRI, Petitioner-Appellant, v. Donald RUMSFELD, Secretary of Defense, and M.A. Marr, Commander, Naval Consolidated Brig, Charleston, South Carolina, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

360 F.3d 707

Ali Saleh Kahlah AL-MARRI, Petitioner-Appellant, v. Donald RUMSFELD, Secretary of Defense, and M.A. Marr, Commander, Naval Consolidated Brig, Charleston, South Carolina, Respondents-Appellees.

No. 03-3674.

United States Court of Appeals, Seventh Circuit.

Argued February 18, 2004.

Decided March 8, 2004.

Mark A. Berman, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, for Petitioner-Appellant.

K. Tate Chambers, Office of the United States Attorney, Peoria, IL, Paul D. Clement, Washington, DC, for Respondents-Appellees.

Before COFFEY, EASTERBROOK, and EVANS, Circuit Judges.

EASTERBROOK, Circuit Judge.

A citizen of Qatar, Ali Saleh Kahlah al-Marri entered the United States on September 10, 2001. He was detained in December 2001 as a material witness believed to have evidence about the terrorist attacks of September 11. While in custody, al-Marri made statements that led to his indictment for lying to the FBI; the grand jury also charged him with using bogus identification to obtain loans. Some of al-Marri's activities took place in Illinois before his arrest and others during his time in the Southern District of New York as a material witness; he chose Illinois as a venue for the criminal proceedings. Before trial could be held, however, President Bush declared al-Marri to be an enemy combatant affiliated with al Qaeda. Later that day (June 23, 2003), the United States dismissed the indictment and moved al-Marri from Illinois to the Naval Brig in Charleston, South Carolina, for detention and questioning. That Brig is where other persons designated as enemy combatants, including Jose Padilla and Yaser Esam Hamdi, are being held.

Still liking the Central District of Illinois, al-Marri filed there a petition for a writ of habeas corpus. 28 U.S.C. § 2241. Section 2241(a) provides: "Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions." The district judge read "jurisdiction" to refer to the district in which the court sits, rather than its ability to obtain personal jurisdiction over the warden. Charleston is within the District of South Carolina, and the judge held that it is the only court in which al-Marri may contest his custody. 274 F.Supp.2d 1003 (C.D.Ill.2003). Although al-Marri named as respondents the President and Secretary of Defense — anticipating that the district judge might be unwilling to treat the Commander of a military prison in South Carolina as amenable to suit in Illinois — the court was unpersuaded, ruling that the location for a proceeding under § 2241 is the district of the petitioner's custody and not the larger (potentially nationwide) territory in which a custodian may be served with a summons.

Naming the President as a respondent was not only unavailing but also improper, and we have removed his name from the caption. Suits contesting actions of the executive branch should be brought against the President's subordinates. See Franklin v. Massachusetts, 505 U.S. 788, 803, 112 S.Ct. 2767, 120 L.Ed.2d 636 (plurality opinion), 826 (Scalia, J., concurring) (1992). What is more, the President could not be called al-Marri's custodian even if he were otherwise an appropriate litigant. True, the President authorized al-Marri's custody by designating him as an enemy combatant, but there is a difference between authorizing and exercising custody. A judge authorizes custody by imposing a sentence of imprisonment, but this does not make the judge an appropriate respondent in a collateral attack. The legislature that enacted the statute in question, the criminal investigator who found damning evidence, the prosecutor, the grand jurors who returned the indictment, the petit jurors who rendered the verdict, the judge who imposed sentence, the state or federal attorney general, the governor (or President) — these and more play roles in authorizing custody. But for an inmate of a brig, jail, or prison the "custodian" is the person in charge of that institution. See Hogan v. Hanks, 97 F.3d 189 (7th Cir.1996). In the federal system, this means the warden (or Commander) rather than the Director of the Bureau of Prisons, the Secretary of the Navy, the Chairman of the Joint Chiefs of Staff, the Attorney General, the Secretary of Defense, or the President.

Commander Marr of the Naval Brig is al-Marri's custodian. Secretary Rumsfeld is Marr's (remote) superior, and no more an appropriate respondent on that account than is the Attorney General when a convicted federal prisoner or an alien detained pending removal seeks a writ of habeas corpus. See Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 673 (7th Cir.2003). al-Marri named the Secretary of Defense in the belief that this would facilitate litigation in the Central District of Illinois, but we do not see why it would do so even if the Secretary were his custodian. Venue in actions against federal officials is controlled by 28 U.S.C. § 1391(e):

A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action.

See also Stafford v. Briggs, 444 U.S. 527, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980). Neither Secretary Rumsfeld nor Commander Marr "resides" in the Central District of Illinois; al-Marri does not reside there either; few if any of the events that determine whether (and how) al-Marri can be held under the law of war and the authority granted by 18 U.S.C. § 4001(a) and Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 1 (1942), occurred in the Central District of Illinois. But if § 2241(a) "otherwise provides," and allows litigation in the forum of the prisoner's choice, then again it is unnecessary to name the Secretary of Defense as a party; Commander Marr, like any other federal official, may be a defendant (in her official capacity) in any district where Congress has authorized the litigation to take place. Whether Secretary Rumsfeld (or Commander Marr) has enough "contacts" with Illinois that litigation could occur in a court of that state consistent with due process is beside the point. An official-capacity suit such as this is against the office, not the person, and every federal office has "contacts" with the whole United States of America. The district court wields the authority of the United States as a nation rather than of any state. See Sheet Metal Workers' National Pension Fund v. Elite Erectors, Inc., 212 F.3d 1031 (7th Cir.2000); Lisak v. Mercantile Bancorp, Inc., 834 F.2d 668 (7th Cir.1987). The right question is where § 2241 allows litigation to be conducted. For persons imprisoned by the national government, the answer must be either "the district where the petitioner is confined" or "any of the 94 federal districts"; if the answer is favorable to al-Marri and venue lies everywhere, it suffices to name Commander Marr as a respondent. The answer, however, is not favorable to al-Marri.

Long ago the Supreme Court held that the phrase "within their respective jurisdictions" in § 2241's predecessor limits proceedings to the federal district in which the petitioner is detained. See, e.g., Wales v. Whitney, 114 U.S. 564, 574, 5 S.Ct. 1050, 29 L.Ed. 277 (1885); Carbo v. United States, 364 U.S. 611, 617, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). This is an assumption underlying 28 U.S.C. § 2255: until that statute directed federal prisoners' post-conviction petitions to the sentencing courts, collateral attacks had been litigated where the prisoners were located. See United States v. Hayman, 342 U.S. 205, 212-19, 72 S.Ct. 263, 96 L.Ed. 232 (1952). If § 2241(a) allowed prisoners held in other states to file in the original sentencing districts, § 2255 would have been unnecessary. Likewise § 2241(d), which provides that, when a prisoner sentenced within one part of a state that has multiple federal districts is being held outside that district but still within that state, the petition may be filed in the district where the sentence was imposed. If all 94 federal districts are available to every prisoner all the time, what function does § 2241(d) serve? Courts ought not read federal statutes in ways that make whole sections nugatory.

Appellate courts regularly dismiss actions under § 2241 filed outside the judicial district that contains the place of the prisoner's detention. See, e.g., Vasquez v. Reno, 233 F.3d 688, 691 (1st Cir.2000); Yi v. Maugans, 24 F.3d 500, 507 (3d Cir.1994); In re Hanserd, 123 F.3d 922, 925 & n. 2 (6th Cir.1997); Jones v. Biddle, 131 F.2d 853, 854 (8th Cir.1942); Blango v. Thornburgh, 942 F.2d 1487, 1491-92 (10th Cir.1991); Guerra v. Meese, 786 F.2d 414, 416 (D.C.Cir.1986). We have taken the same position, not only in Robledo-Gonzales and Hogan but also in their predecessors. See, e.g., United States v. Mittelsteadt, 790 F.2d 39 (7th Cir.1986); Hanahan v. Luther, 760 F.2d 148, 151 (7th Cir.1985). These decisions respect the language of § 2241(a) and the holdings of the Supreme Court. They make practical sense as well. Enforcing § 2241(a) as written avoids forum shopping. Although al-Marri chafes at the prospect of litigating in South Carolina, the district court there and its appellate court are no less likely to respect his legal rights than are the courts of this circuit; and if to al-Marri (or his lawyers) it is irksome to litigate in Charleston, imagine the difficulties that would ensue if al-Marri could choose the district courts located in Fairbanks, Minot, San Juan, or Agana....