Rasul v. Myers, No. 06-5209.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: Per Curiam
• Citation: 563 F.3d 527
• Parties: Shafiq RASUL, et al., Appellants/Cross-Appellees v. Richard MYERS, Air Force General, et al., Appellees/Cross-Appellants.
• Docket Number: No. 06-5209.,No. 06-5222.
• Decision Date: 24 April 2009

563 F.3d 527 Shafiq RASUL, et al., Appellants/Cross-Appellees
v.
Richard MYERS, Air Force General, et al., Appellees/Cross-Appellants. No. 06-5209. No. 06-5222. United States Court of Appeals, District of Columbia Circuit. Argued September 14, 2007. Decided April 24, 2009.

On Remand from the United States Supreme Court.

[563 F.3d 528]

Eric L. Lewis, A. Katherine Toomey, Michael Ratner, and Shayana Kadidal were on the supplemental briefs for appellants/cross-appellees.

Michael F. Hertz, Acting Assistant Attorney General, and Robert M. Loeb and Matthew M. Collette, Attorneys, were on the supplemental briefs for appellees/cross-appellants.

Before: HENDERSON and BROWN, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge BROWN.

PER CURIAM:

The Supreme Court vacated our decision in Rasul v. Myers, 512 F.3d 644 (D.C.Cir. 2008) (Rasul I), and remanded the case for further consideration in light of Boumediene v. Bush, ___ U.S. ___, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008). Rasul v. Myers, ___ U.S. ___, 129 S.Ct. 763, 172 L.Ed.2d 753 (2008). We do not believe Boumediene changes the outcome in Rasul I. We therefore reinstate our judgment, but on a more limited basis.

We have before us four British nationals who brought an action alleging that they were illegally detained and mistreated at the United States Naval Base at Guantanamo Bay, Cuba, from 2002 until their release in 2004. They named as defendants former Secretary of Defense Donald Rumsfeld and ten senior U.S. military officials. The complaint was in seven counts. Counts 1, 2, and 3 invoked federal jurisdiction under the Alien Tort Statute, 28 U.S.C. § 1350, and alleged violations of international law. Count 4 alleged violations of unspecified provisions of the Geneva Convention. Counts 5 and 6 asserted Bivens claims for violations of the Fifth and Eighth Amendments to the Constitution. See Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Count 7 alleged a violation of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb et seq.

We affirmed the district court's dismissal of Counts 1 to 4 and Counts 5 and 6 and reversed its denial of the motion to dismiss Count 7. Rasul I, 512 F.3d at 672. We agreed that the district court had no jurisdiction over Counts 1 to 4.¹ As to Counts 5 and 6, we ruled against plaintiffs on the merits and held, in the alternative, that even if plaintiffs had rights under the Due Process Clause and the Cruel and Unusual Punishment Clause and even if those rights had been violated, qualified immunity shields the defendants because the asserted rights were not clearly established at the time of plaintiffs' detention. Id. at 665-67. As to Count 7, we held that plaintiffs were not among the protected "person[s]" for whom RFRA, 42 U.S.C. § 2000bb-1(a)-(b), creates a private right of action to remedy unjustifiable government burdens on the exercise of religion. Id. at 672.

Plaintiffs do not attempt to show how Boumediene bears on Counts 1 to 4, and we can see nothing in the Supreme Court's

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decision that could possibly affect our disposition of those Counts. We shall therefore reinstate our judgment on Counts 1 to 4. With respect to the remaining three Counts, plaintiffs argue that Boumediene vitiates our analysis. The gist of their argument is that Boumediene prescribes a multi-factor, "functional" test to determine whether aliens in their predicament can invoke constitutional rights, and that the rights they assert pass the test. By extension, they argue that if RFRA mirrors a previous version of the constitutional right of free exercise, then the same functional approach governs RFRA's extraterritorial reach.

The main question in Boumediene was whether a provision in the Military Commissions Act, Pub.L. No. 109-366, 120 Stat. 2600 (2006) (codified in part at 28 U.S.C. § 2241 & note), depriving federal courts of habeas corpus jurisdiction over petitions filed by Guantanamo detainees, violated the clause of the Constitution governing suspension of the writ, ART. 1, § 9, cl. 2. 128 S.Ct. at 2237. Holding that the Suspension Clause extended to Guantanamo, the Court struck down the jurisdiction-stripping provision of the Military Commissions Act as an unconstitutional suspension of the writ. Id. The Court acknowledged that it had never before determined that the Constitution protected aliens detained abroad, id. at 2262, and explicitly confined its constitutional holding "only" to the extraterritorial reach of the Suspension Clause, id. at 2275. The Court stressed that its decision "does not address the content of the law that governs petitioners' detention." Id. at 2277 (emphasis added). With those words, the Court in Boumediene disclaimed any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause. See, e.g., Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) (holding that aliens detained on a U.S. military base outside sovereign U.S. territory have no due process rights); United States v. Verdugo-Urquidez, 494 U.S. 259, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (holding that the Fourth Amendment does not protect nonresident aliens against unreasonable searches or seizures conducted outside sovereign U.S. territory); Pauling v. McElroy, 278 F.2d 252, 254 n. 3 (D.C.Cir.1960); People's Mojahedin Org. of Iran v. U.S. Dep't of State, 182 F.3d 17, 22 (D.C.Cir.1999); see also Kiyemba v. Obama, 555 F.3d 1022, 1026 (D.C.Cir.2009) (holding that alien detainees at Guantanamo cannot invoke the Due Process Clause).

Plaintiffs nevertheless maintain that Boumediene has eroded the precedential force of Eisentrager and its progeny. Whether that is so is not for us to determine; the Court has reminded the lower federal courts that it alone retains the authority to overrule its precedents. See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917, 104 L.Ed.2d 526 (1989). A panel of this court is under another constraint: we must adhere to the law of our circuit unless that law conflicts with a decision of the Supreme Court. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc).

There is another reason why we should not decide whether Boumediene portends application of the Due Process Clause and the Cruel and Unusual Punishment Clause to Guantanamo detainees— and it is on this ground we will rest our decision on remand. The doctrine of qualified immunity shields government officials from civil liability to the extent their alleged misconduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Our initial opinion followed

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the requirement of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), that courts must first determine whether the alleged facts make out a violation of a constitutional right; if the plaintiff satisfies this first step, then the court must determine whether the asserted right was "clearly established" at the time of the violation. Id. at 201, 121 S.Ct. 2151. After our initial decision, the Supreme Court handed down Pearson v. Callahan, ___ U.S. ___, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009). Pearson ruled that the Saucier sequence is optional and that lower federal courts have the discretion to decide only the more narrow "clearly established" issue "in light of the circumstances in the particular case at hand." Id. at 818.

Considerations of judicial restraint favor exercising the Pearson option with regard to plaintiffs' Bivens claims in Counts 5 and 6. The immunity question is one that we can "rather quickly and easily decide," Pearson, 129 S.Ct. at 820—and already have. See Rasul I, 512 F.3d at 665-67. We thus follow the "older, wiser judicial counsel `not to pass on questions of constitutionality ... unless such adjudication is unavoidable.'" Pearson, 129 S.Ct. at 821 (quoting Scott v. Harris, 550 U.S. 372, 388, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (Breyer, J., concurring) (quoting Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105, 65 S.Ct. 152, 89 L.Ed. 101 (1944))). In view of Saucier, constitutional adjudication was "unavoidable" when we rendered our initial decision, but given Pearson that is no longer true.

Our vacated opinion explained why qualified immunity insulates the defendants from plaintiffs' Bivens claims. Rasul I, 512 F.3d at 665-67. Boumediene does not affect what we wrote. No reasonable government official would have been on notice that plaintiffs had any Fifth Amendment or Eighth Amendment rights. Id. at 666. At the time of their detention,² neither the Supreme Court nor this court had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights—under the Fifth Amendment, the Eighth Amendment, or otherwise. The Court in Boumediene recognized just that: "It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution." 128 S.Ct. at 2262.³

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Eisentrager and Verdugo-Urquidez were thought to be the controlling Supreme Court cases on the Constitution's application to aliens abroad. Eisentrager rejected a habeas petition brought by German nationals imprisoned at a United States military base in Germany. 339 U.S. at 778, 70 S.Ct. 936. The Court held that these alien prisoners, who "at no relevant time were within any territory over which the United States is sovereign," were not entitled to invoke the protection of the writ or the Fifth Amendment. Id. The Court referred nine times to the...