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No. 08-235

 

In the Supreme Court of the United States

SHAFIQ RASUL, ET AL., PETITIONERS

v.

RICHARD MYERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

GREGORY G. GARRE
Solicitor General
Counsel of Record
GREGORY G. KATSAS
Assistant Attorney General
JONATHAN F. COHN
Deputy Assistant Attorney
General
ROBERT M. LOEB
MATTHEW M. COLLETTE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that the Religious Freedom Restoration Act of 1993, 42 U.S.C. 2000bb et seq., does not provide relief to aliens captured during a time of armed conflict and held out side the United States at Guantanamo Bay, Cuba.

2. Whether the court of appeals correctly held that respondents are entitled to qualified immunity on peti tioners' constitutional claims.

3. Whether the court of appeals correctly held that the United States should be substituted for the indi vidual defendants pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), 28 U.S.C. 2679(b)(1).

In the Supreme Court of the United States

No. 08-235

SHAFIQ RASUL, ET AL., PETITIONERS

v.

RICHARD MYERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-66a) is reported at 512 F.3d 644. The opinions of the district court (Pet. App. 71a-99a, 102a-145a) are reported at 433 F. Supp. 2d 58 and 414 F. Supp. 2d 26, respectively.

JURISDICTION

The judgment of the court of appeals (Pet. App. 1a- 2a) was entered on January 11, 2008. A petition for re hearing was denied on March 26, 2008 (Pet. App. 146a- 147a). On June 2, 2008, the Chief Justice extended the time within which to file a petition for a writ of certiorari to and including August 22, 2008, and the petition was filed on that date. The jurisdiction of this Court is in voked under 28 U.S.C. 1254(1).

STATEMENT

1. a. In the wake of the terrorist attacks of Septem ber 11, 2001, the President took immediate action to prevent additional attacks, and Congress swiftly ap proved his use of "all necessary and appropriate force against those nations, organizations, or persons he de termines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001." Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (Sept. 18, 2001). The Presi dent ordered United States Armed Forces to subdue both the al Qaeda terrorist network and the Taliban re gime that harbored it in Afghanistan. Although United States and allied troops have removed the Taliban from power and dealt al Qaeda forces a heavy blow, armed combat continues.

During that conflict, the United States, consistent with the law and settled practice of armed conflict, has seized many hostile persons and detained a small pro portion of them as enemy combatants. A number of those individuals have been or are being held at the United States Naval Base at Guantanamo Bay, Cuba (Guantanamo).

b. Petitioners are four British citizens who were captured in Afghanistan in the months following Sep tember 11. Pet. App. 104a-105a, 165a-166a. According to the allegations in their complaint, which are not con ceded but must be taken as true at this stage of the liti gation, three of the petitioners were captured by a war lord in Afghanistan in November 2001 and turned over to the United States. Id. at 165a. The fourth petitioner alleges he was captured by the Taliban, released, and then detained by United States forces. Id. at 165a-166a. All four petitioners were transferred to Guantanamo in early 2002 and released in March 2004. Id. at 167a, 207a.

2. After petitioners were released from United States custody and sent to the United Kingdom, they brought this civil action against then-Secretary of De fense Donald H. Rumsfeld and ten other senior Depart ment of Defense officials in their individual capacities. Petitioners alleged that they suffered inhumane treat ment, some of which they allege constituted torture, at the hands of unidentified United States military person nel. Pet. App. 167a, 189a-207a. They also alleged that United States military officials infringed on the practice of their religion, at times interfering with their prayers and withholding or desecrating copies of the Koran. Id. at 223a. Petitioners alleged that their mistreatment "was not simply the product of isolated or rogue actions by individual military personnel," because it stemmed from "deliberate and foreseeable" action taken to "co erce nonexistent information regarding terrorism." Id. at 168a-169a. They alleged that "[t]he torture, threats, physical and psychological abuse inflicted upon [peti tioners] were devised, approved, and implemented by Defendant Rumsfeld and other [respondents] in the mil itary chain of command. These techniques were in tended as interrogation techniques to be used on detain ees." Id. at 208a. Petitioners further alleged that re spondents knew that petitioners were tortured or mis treated, "took no steps to prevent the infliction of tor ture and other mistreatment," and "authorized and en couraged the infliction of torture and other mistreat ment against [petitioners]." Id. at 212a-213a.

Petitioners' complaint sought relief under the Alien Tort Statute (ATS), 28 U.S.C. 1350, for alleged viola tions of international law (Counts 1-3). Pet. App. 214a- 218a. Petitioners also claimed that respondents had violated unspecified provisions of the Third and Fourth Geneva Conventions (Count 4), id. at 218a-219a, the Fifth and Eighth Amendments to the United States Constitution (Counts 5 and 6), id. at 219a-222a, and the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. 2000bb et seq. (Count 7), Pet. App. 222a-224a.

Pursuant to the Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall Act), 28 U.S.C. 2679(b)(1), the Attorney General (through his designee) certified that, "at the time of the conduct al leged in the complaint," the individual respondents "were acting within the scope of their employment as employees of the United States," and substituted the United States for the individual respondents on the claims for violation of the ATS and the Geneva Conven tions. C.A. App. 60; see 28 U.S.C. 2679(b)(1) (making a suit against the United States the exclusive remedy for seeking money damages for the wrongful act or omission of a Government employee acting in the scope of em ployment). Respondents moved to dismiss those counts because petitioners had not exhausted their administra tive remedies. Respondents also moved to dismiss the constitutional and RFRA claims on the basis of qualified immunity.

3. a. In its initial decision, the district court de ferred consideration of the RFRA claim but granted re spondents' motion to dismiss the other claims. Pet. App. 100a-146a. On the international law claims (under the ATS and the Geneva Conventions), the court held that the United States had been properly substituted for the individual defendants. Id. at 110a-111a. Applying the respondeat superior law of the District of Columbia, the court held that respondents were acting within the scope of their employment when the alleged acts occurred. The court determined that the United States had "au thorized military personnel in Guantanamo to exercise control over the detainees and question the detainees while in the custody of the United States," and that "the complaint points to actions which arose specifically from authorized activities." Id. at 119a. After substituting the United States, the court dismissed the claims be cause petitioners had not exhausted their administrative remedies under the Federal Tort Claims Act (FTCA), ch. 753, Tit. IV, 60 Stat. 842. Pet. App. 130a-131a.

b. On the constitutional claims, the district court held that respondents are entitled to qualified immunity. Pet. App. 131a-143a. The court declined to determine whether petitioners had alleged constitutional violations, holding that respondents are entitled to qualified immu nity because any constitutional rights with respect to Guantanamo detainees were not clearly established at the time of the conduct. Id. at 134a-143a.

c. After supplemental briefing, the district court addressed petitioners' RFRA claim and denied respon dents' motion to dismiss. Pet. App. 70a-99a. Noting that the statute extends by its terms to "each territory and possession of the United States," 42 U.S.C. 2000bb-2(2), the court held that Guantanamo is a "possession" of the United States within the meaning of the statute. Pet. App. 81a-83a. The court then held that RFRA applies to non-resident aliens like petitioners because aliens de tained at Guantanamo are "persons" for purposes of RFRA. Id. at 88a-89a. It also held that respondents are not entitled to qualified immunity on the RFRA claim because the rights of Guantanamo detainees under RFRA were clearly established at the time of petition ers' detention. Id. at 94a-99a.

4. The court of appeals affirmed in part and re versed in part. Pet. App. 1a-66a.

a. The court of appeals first held that petitioners' claims against the individual respondents under the ATS were properly dismissed pursuant to the Westfall Act. Applying D.C. law concerning the scope of employment, the court concluded that, taking the allegations in the complaint as true, respondents had acted within the scope of their employment. Pet. App. 21a-32a. In par ticular, it concluded that "the underlying conduct-here, the detention and interrogation of suspected enemy combatants-is the type of conduct [respondents] were employed to engage in." Id. at 25a-26a. The court noted that, while petitioners "challenge[d] the methods [re spondents] used to perform their duties," they did "not allege that [respondents] acted as rogue officials or em ployees who implemented a policy of torture for reasons unrelated to the gathering of intelligence." Id. at 26a.

Because respondents' alleged conduct fell within the scope of employment for purposes of the Westfall Act, the court of appeals held that the ATS claims were prop erly restyled as claims against the United States under the FTCA. Pet. App. 30a. The court then held that the district court correctly dismissed the FTCA claims be cause petitioners had not exhausted their administrative remedies. Id. at 31a-32a.1

For the same reason, the court of appeals affirmed the dismissal of petitioners' claim under the Geneva Conventions. It held that the alleged conduct falls with in the scope of employment, and a suit against respon dents is precluded by the Westfall Act. Pet. App. 34a- 35a.

b. The court of appeals affirmed the dismissal of peti tioners' Bivens claims asserting violations of their Fifth and Eighth Amendment rights. Pet. App. 36a-44a. The court observed that it had recently held in Boumediene v. Bush, 476 F.3d 981, 984 (D.C. Cir. 2007), rev'd, 128 S. Ct. 2229 (2008), that detainees at Guantanamo lack con stitutional rights because they are aliens without prop erty or presence in the United States. Pet. App. 36a- 37a.

The court of appeals also held that "[e]ven assuming arguendo the detainees can assert their Fifth and Eighth Amendment claims, those claims are nonetheless subject to [respondents'] assertion of qualified immu nity." Pet. App. 41a. The court observed that, even be fore its decision in Boumediene, "courts did not bestow constitutional rights on aliens located outside sovereign United States territory." Id. at 42a. The court also held that, "[b]ased on the plain text of the lease [between the United States and Cuba] and on case law, it was not clearly established at the time of the alleged violations * * * that a reasonable officer would know that Guan tanamo is sovereign United States territory." Id. at 44a.

c. The court of appeals held that the district court erred in denying respondents' motion to dismiss the RFRA claim. Pet. App. 45a-54a. Finding it unnecessary to address whether RFRA generally applies extra territorially, the court determined that petitioners are not "persons" covered by the statute. Id. at 45a-46a.

The court of appeals noted that, while RFRA's text does not define "person," under various constitutional provisions the term does not include non-resident aliens. Pet. App. 47a. Because RFRA's purpose was "to restore what, in the Congress's view, is the free exercise of reli gion guaranteed by the Constitution," the court deter mined that "'person' as used in RFRA should be inter preted as it is in constitutional provisions." Id. at 52a. The court noted that this Court had previously held that German nationals held in Germany were not "persons" under the Fifth Amendment, Johnson v. Eisentrager, 339 U.S. 763, 783 (1950), and that the term "people" as used in the Fourth Amendment does not include non- resident aliens, United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990). Pet. App. 53a. Thus, the court con cluded that "RFRA's use of 'person' should be inter preted consistently with the Supreme Court's interpre tation of 'person' in the Fifth Amendment and 'people' in the Fourth Amendment to exclude non-resident aliens. Because the plaintiffs are aliens and were located out side sovereign United States territory at the time their alleged RFRA claim arose, they do not fall with[in] the definition of 'person.'" Id. at 54a (footnote omitted).2

d. Judge Brown concurred. Pet. App. 55a-66a. She agreed that the ATS and Geneva Convention claims must be dismissed. Id. at 55a. She also agreed that the Bivens claims for constitutional violations were properly dismissed, but she reached that conclusion without ad dressing the applicability of the Fifth and Eighth Amendments to Guantanamo detainees. Judge Brown would have held that special factors counsel hesitation in the creation of a Bivens remedy in this context, rely ing on circuit precedent refusing to allow a Bivens ac tion "for Nicaraguans who brought claims against U.S. government officials for supporting the Contras" be cause it would have significant national security and foreign policy implications. Id. at 55a-58a (discussing Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985)).

Judge Brown also concurred in the majority's hold ing that the RFRA claim must be dismissed, but for dif ferent reasons. She disagreed with the panel's holding that the term "person," as used in RFRA, did not apply to nonresident aliens. Pet. App. 59a-63a. Yet, she con cluded that other factors left no doubt that Congress did not intend for RFRA to apply to petitioners. Id. at 63a. Even if that were not true, she "would have no trouble concluding [respondents] are protected by qualified im munity," because RFRA's application to aliens like pe titioners was not clearly established. Id. at 63a-65a. Judge Brown concluded that "[a]ccepting [petitioners'] argument that RFRA imports the entire Free Exercise Clause edifice into the military detention context would revolutionize the treatment of captured combatants in a way Congress did not contemplate." Id. at 65a.

ARGUMENT

The court of appeals' decision is correct and does not conflict with decisions of this Court or any other court of appeals. The court of appeals reasonably concluded that military detainees could not impose personal monetary liability on the Nation's military commanders for over seas conditions of confinement during a time of war. At the very least, any such right was not clearly established at the time of petitioners' detention in Guantanamo. Nor is this case the proper vehicle for addressing the application of RFRA to aliens outside the United States or whether the Fifth and Eighth Amendments apply to Guantanamo detainees. Because respondents here will in any event be entitled to qualified immunity with re spect to the RFRA and constitutional claims, the peti tion for a writ of certiorari should be denied.

1. The court of appeals' holding that petitioners' RFRA claim was correctly dismissed (Pet. App. 45a-54a) does not warrant this Court's review.

a. The court of appeals correctly held that RFRA does not apply to aliens detained at Guantanamo. RFRA provides that the "Government shall not substan tially burden a person's exercise of religion" unless the government "demonstrates that application of the bur den to the person-(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental inter est." 42 U.S.C. 2000bb-1(a) and (b). RFRA also gives a statutory right of action to a "person whose religious exercise has been burdened." 42 U.S.C. 2000bb-1(c).

The statute does not define the term "person." Nor does it specify that the term includes aliens outside the sovereign territory of the United States. Petitioners insist that the term should be read expansively to cover any individual anywhere under any circumstances-an interpretation that would apply not just to Guantanamo detainees, but to any detainee held in any detention fa cility during any war. As Judge Brown recognized in her concurring opinion, such a holding "would revolu tionize the treatment of captured combatants in a way Congress did not contemplate." Pet. App. 65a. It would allow wartime detainees to sue and recover money from their captors during an ongoing war.

The court of appeals correctly concluded, on the ba sis of statutory context, that Congress did not intend for RFRA to apply to such aliens. Pet. App. 48a-49a. As its title indicates, the Religious Freedom Restoration Act was intended to restore free exercise rights for those who previously had them-not to create new rights that had never previously been recognized. RFRA was en acted in response to this Court's decision in Employ ment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), which held that a generally applicable law may burden a religious exercise even when the government does not demonstrate a compel ling interest for its rule. Id. at 884-889. As the statu tory text plainly says, Congress's express purpose in RFRA was to "restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972)." 42 U.S.C. 2000bb(b)(1) (emphasis added).3

The legislative history is equally clear in expressing Congress's expectation that courts would look to pre- Smith cases to apply RFRA. See H.R. Rep. No. 88, 103d Cong., 1st Sess. 6-7 (1993); S. Rep. No. 111, 103d Cong., 1st Sess. 9 (1993); see also id. at 9 ("the compelling in terest test generally should not be construed more strin gently or more leniently than it was prior to Smith"); id. at 2 (the Act "responds to the Supreme Court's decision in * * * Smith by creating a statutory prohibition against government action substantially burdening the exercise of religion") (footnote omitted). As the Senate Report stated, "the purpose of this act is only to over turn the Supreme Court's decision in Smith." Id. at 12 (emphasis added).

In light of the expressly stated purpose of Congress simply to restore the compelling-interest test for pre- existing free exercise claims, the court of appeals cor rectly held that the "person[s]" protected by RFRA are those who had recognized constitutional rights at the time RFRA was enacted. Pet. App. 48a-49a. Petitioners do not dispute that when Congress enacted RFRA, it had long been established that aliens outside United States territorial jurisdiction who lacked a substantial connection to the United States were not entitled to First Amendment protections. See United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904) (Turner); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990). Indeed, applying those principles in 1995, the Eleventh Circuit specifically held that aliens at Guantanamo could not assert First Amendment rights. Cuban Am.Bar Ass'n v. Christopher, 43 F.3d 1412, 1429-1430, cert. denied, 515 U.S. 1142, and 516 U.S. 913 (1995).

The courts had also made clear that the "people" pro tected by the Fourth Amendment are "a class of persons who are part of a national community or who have other wise developed sufficient connection with this country to be considered part of that community." Verdugo-Urqui dez, 494 U.S. at 265; see Turner, 194 U.S. at 292 (an ex cludable alien is not entitled to First Amendment rights because the alien "does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law"). Courts had also uniformly held that aliens "outside the sovereign terri tory of the United States" are not "person[s]" under the Fifth Amendment. See Verdugo-Urquidez, 494 U.S. at 269; Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004), cert. denied, 543 U.S. 1146 (2005); Peoples Mojahedin Org. v. United States, 182 F.3d 17, 22 (D.C. Cir. 1999), cert. denied, 529 U.S. 1104 (2000).4

Because RFRA merely "restore[d] the compelling interest test as set forth in Sherbert," 42 U.S.C. 2000bb(b)(1), and because that test afforded no protec tion to aliens abroad who lacked a substantial connection to the United States, it follows that Congress did not intend that the definition of "person" in RFRA extend to those aliens. Petitioners' argument to the contrary would create a result demonstrably at odds with the con text of the statute and the express intent of Congress.

b. Petitioners contend (Pet. 19-20) that RFRA does not simply duplicate pre-existing constitutional protec tions, but instead extends First Amendment-like pro tections "to religious practices" that had previously been held unprotected under the First Amendment. In sup port of that contention, petitioners note that RFRA ap plies to prison inmates and military personnel, overrul ing cases such as O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), and Goldman v. Weinberger, 475 U.S. 503 (1986).

But nothing in RFRA purported to extend its reach to persons who were not previously covered by the First Amendment. Residents of the United States seeking to use narcotics for religious purposes (as in Smith), mili tary personnel seeking to wear yarmulkes (as in Goldman), and prison inmates seeking to attend reli gious services (as in O'Lone) had always had First Amendment rights. RFRA merely ensured that their free exercise claims would be adjudicated under the pre- Smith compelling-interest standard. Nowhere does the statute suggest that Congress intended to give rights to persons who never had First Amendment rights in the first instance.5

c. Petitioners mischaracterize the court of appeals' decision as holding that "because Guantánamo detainees have no constitutional rights (a blanket proposition re jected by this Court in Boumediene), they also have no rights under RFRA." Pet. 17-18 (citation omitted). That is not what the court of appeals held. Instead, it held that Congress intended to incorporate the pre- Smith standard governing free exercise claims, and in tended RFRA's application to "person[s]" to include individuals who had recognized free exercise rights. Pet. App. 48a-49a.

As petitioners acknowledge (Pet. 22), the application of RFRA is a statutory question about congressional intent, and not simply a determination of the current state of the Constitution's application to aliens at Guan tanamo. Thus, the reach of this Court's decision in Bou mediene is not controlling, because it does not resolve the question of congressional intent as to RFRA. Even if Boumediene's Suspension Clause holding were ex tended to the First Amendment, that would not change the fact that Congress enacted RFRA with the intent to limit its statutory entitlement to persons who had First Amendment rights before Smith.6

d. In any event, this case is not a suitable vehicle for addressing whether RFRA applies to alien detainees held at Guantanamo because respondents will be enti tled to qualified immunity either way. See Pet. App. 64a (Brown, J., concurring). Government officials perform ing discretionary functions are "shielded from liability for civil damages insofar as their conduct does not vio late clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (emphasis added).7 The doctrine of qualified immunity "'gives am ple room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law.'" Hunter v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

To defeat qualified immunity, the right invoked must be "clearly established" at the time the officer acted, such that "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001); see Anderson v. Creighton, 483 U.S. 635, 641 (1987). It is not enough for a plaintiff to identify some generalized right that was established at the time of the relevant conduct. Saucier, 533 U.S. at 201-202. Rather, "the right the official is alleged to have violated must have been 'clearly estab lished' in a more particularized, and hence more rele vant, sense: The contours of the right must be suffi ciently clear that a reasonable official would understand that what he is doing violates that right." Anderson, 483 U.S. at 640. While the precise conduct at issue need not have been previously held to be unlawful, its "unlawful ness must be apparent" in "light of pre-existing law." Ibid.; see Mitchell v. Forsyth, 472 U.S. 511, 535 n.12 (1985).

At the time petitioners were detained (between 2002 and March 2004), a reasonable official could have doubted, at a minimum, that RFRA granted rights to suspected enemy combatants captured on foreign soil and held at a military facility abroad during a time of war. As explained above, a reasonable official could have concluded from RFRA's text and legislative history that the statute was designed merely to restore the legal standard governing pre-existing free exercise rights. See, e.g., S. Rep. No. 111, supra, at 12 ("[T]he purpose of this act is only to overturn the Supreme Court's deci sion in Smith.") (emphasis added); see also Florida Pre paid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 638 (1999) ("Through RFRA, Con gress reinstated the compelling governmental interest test eschewed by Smith."). Moreover, a reasonable offi cial would have been justified in relying on prior case law establishing that aliens outside the United States in general-and aliens at Guantanamo in particular-did not enjoy First Amendment rights. See, e.g., Verdugo- Urquidez, 494 U.S. at 265; Cuban Am. Bar Ass'n, 43 F.3d at 1429-1430.8

2. The court of appeals' holding that petitioners' Bivens claims for alleged violations of the Fifth and Eighth Amendments were correctly dismissed (Pet. App. 36a-44a) does not warrant this Court's review.

a. Petitioners argue (Pet. 25-26) that the court of appeals' holding is inconsistent with this Court's subse quent decision in Boumediene v. Bush, 128 S. Ct. 2229 (2008). But Boumediene did not hold that all provisions of the Constitution protect Guantanamo detainees. The Court held only that Guantanamo detainees have a pro cedural right under the Suspension Clause to file a ha beas petition and thus receive judicial review of "both the cause for detention and the Executive's power to detain." Id. at 2269. Moreover, Boumediene expressly noted that it did not address any "claims of unlawful conditions of treatment or confinement." Id. at 2274.9 Indeed, the Court explained that "[i]t bears repeating that our opinion does not address the content of the law that governs petitioners' detention" (let alone their con ditions of confinement). Id. at 2277. Rather, "[t]hat is a matter yet to be determined," because the Court "h[e]ld" only "that petitioners may invoke the funda mental procedural protections of habeas corpus." Ibid.

Thus, Boumediene did not overturn the Court's prior rulings that the individual-rights provisions of the Con stitution run only to aliens who have a substantial con nection to our country and not to enemy combatants who are detained abroad. In Johnson v. Eisentrager, 339 U.S. 763 (1950), for instance, this Court had ad dressed whether aliens outside the sovereign territory of the United States possess "substantive constitutional rights" in general, id. at 781, and Fifth Amendment rights in particular, id. at 781-785, and it held that they did not, id. at 784-785. Later decisions reaffirmed that holding. See Verdugo-Urquidez, 494 U.S. at 269; Zad vydas v. Davis, 533 U.S. 678, 693 (2001) ("[i]t is well es tablished that certain constitutional protections avail able to persons inside the United States are unavailable to aliens outside of our geographic borders"); Jifry, 370 F.3d at 1182; 32 County Sovereignty Comm. v. Depart ment of State, 292 F.3d 797, 799 (D.C. Cir. 2002). The court of appeals' decision remains correct following Boumediene.

b. In any event, this case is not a proper vehicle for determining the effect that Boumediene will have on Fifth and Eighth Amendment claims because-regard less of how that issue is resolved-the court of appeals correctly held, as an alternative basis for its decision, that respondents are entitled to qualified immunity on those claims because the applicability of the Fifth and Eighth Amendments to Guantanamo detainees was too unsettled at the time of petitioners' detention. Pet. App. 41a ("Even assuming arguendo [petitioners] can assert their Fifth and Eighth Amendment claims, those claims are nonetheless subject to [respondents'] assertion of qualified immunity."). See note 8, supra.

At the time of petitioners' detention (between 2002 and March 2004), it was, at a bare minimum, not clearly established that the Fifth and Eighth Amendments pro tected aliens detained abroad by the military. To the contrary, the case law uniformly held that aliens outside the sovereign territory of the United States did not have enforceable Fifth and Eighth Amendment rights. See pp. 18-19, supra.

Indeed, there were cases that specifically addressed the lack of constitutional rights for aliens at Guantan amo. The Eleventh Circuit had held that alien refugees there had "no First Amendment or Fifth Amendment rights." Cuban Am. Bar Ass'n, 43 F.3d at 1428. Per haps most telling, the District of Columbia Circuit spe cifically concluded-during the period of petitioners' detention-that the Fifth Amendment does not apply to aliens held at Guantanamo. Al Odah v. United States, 321 F.3d 1134, 1140-1144 (2003), rev'd on other grounds sub nom. Rasul v. Bush, 542 U.S. 466 (2004). Even after this Court reversed Al Odah on statutory grounds, see Rasul, 542 U.S. at 476, district courts reached opposing conclusions about whether Guantanamo detainees had Fifth Amendment rights. See Boumediene, 128 S. Ct. at 2241 (describing district court opinions). In fact, more than four years after petitioners were released from United States custody, this Court recognized that "be fore today the Court has never held that noncitizens detained by our Government in territory over which an other country maintains de jure sovereignty have any rights under our Constitution." Id. at 2262.

When "judges thus disagree on a constitutional ques tion, it is unfair to subject [public employees] to money damages for picking the losing side of the controversy." Wilson v. Layne, 526 U.S. 603, 618 (1999). Accordingly, the court of appeals was correct in concluding that a reasonable officer would not have concluded that peti tioners possessed Fifth and Eighth Amendment rights while they were detained at Guantanamo.

Petitioners assert (Pet. 31) that the court of appeals "relied on the absence of any constitutional ruling di rectly on point" in holding that the law was not clearly established. They further criticize (Pet. 33) the court of appeals for "approach[ing] the question of qualified im munity with a single, narrow question-was there a case holding torture at Guantánamo violated specific provi sions of the Constitution?" Although petitioners are correct that the absence of a ruling directly on point does not necessarily preclude a right from being clearly established, their characterization of the court of ap peals' decision as relying upon the absence of a ruling on point is inaccurate. The court of appeals examined ex tensive authority that existed at the time of petitioners' detention and correctly determined that "Supreme Court and Circuit precedent, consistent with Eisentra ger's rejection of the proposition 'that the Fifth Amend ment confers rights upon all persons, whatever their nationality, wherever they are located and whatever their offense,' concluded that non-resident aliens enjoy no constitutional rights." Pet. App. 42a-43a (citing Ei sentrager, 339 U.S. at 783; Verdugo-Urquidez, 494 U.S. at 269; Jifry, 370 F.3d at 1182; People's Mojahedin Org., 182 F.3d at 22).10

Despite petitioners' claims to the contrary (Pet. 31- 33), the court of appeals' decision is also consistent with Hope v. Pelzer, 536 U.S. 730 (2002), and United States v. Lanier, 520 U.S. 259 (1997). Those cases recognized that government officials can be on notice that their ac tions violate clearly established law "even in novel fac tual circumstances," Hope, 536 U.S. at 741, or in a kind of case with facts so extreme that the issue does not "even arise" in other cases, Lanier, 520 U.S. at 271 (in ternal quotation marks and citation omitted). This is not, however, such a case. As discussed above, several cases had held that aliens outside the sovereign terri tory of the United States-specifically including aliens at Guantanamo-did not possess several constitutional rights. As a result, to establish that the law was really the opposite would require an especially high degree of factual particularity. Cf. ibid. ("[W]hen an earlier case expressly leaves open whether a general rule applies to the particular type of conduct at issue, a very high de gree of prior factual particularity may be necessary.").

Finally, petitioners claim (Pet. 34-35) that respon dents "knew * * * that torture violated U.S. criminal and military law" or that torture had been held "uncon stitutional when it occurred in U.S. prisons." But those allegations of the complaint (which the government does not concede) are insufficient to show that the constitu tional rights that petitioners assert were clearly estab lished. As this Court has made clear, qualified immunity applies unless it is clearly established that the defen dant's alleged actions violate the same right that pro vides the basis for the plaintiff's claim. See Davis v. Scherer, 468 U.S. 183, 194 n.12 (1984) ("[O]fficials sued for violations of rights conferred by a statute or regula tion, like officials sued for violation of constitutional rights, do not forfeit their immunity by violating some other statute or regulation."); ibid. ("Neither federal nor state officials lose their immunity by violating the clear command of a statute or regulation-of federal or of state law-unless that statute or regulation provides the basis for the cause of action sued upon."); see also Elder v. Holloway, 510 U.S. 510, 515 (1994) (to defeat immunity, "the clearly established right" must be "the federal right on which the claim for relief is based"). Here, petitioners base their claim on violations of the Fifth and Eighth Amendments as they apply to aliens in Guantanamo, and thus must show that those rights (not any other statutory or constitutional rights) were clearly established.11

Because petitioners cannot make that showing, re spondents are entitled to qualified immunity even if the court of appeals erred in holding that petitioners lacked enforceable rights under the Fifth and Eighth Amend ments.

c. Further review is also inappropriate because peti tioners' constitutional claims should be barred for an independent reason. As respondents argued in the court of appeals (Gov't C.A. Br. 35-40) and as Judge Brown determined in her concurring opinion (Pet. App. 55a- 58a), even assuming that the conditions of petitioners' detention at Guantanamo were governed by the Fifth and Eighth Amendments, special factors counsel against recognizing a Bivens remedy in this context. See Wilkie v. Robbins, 127 S. Ct. 2588, 2598 (2007) (noting that even if there is no alternative damages remedy available to a putative Bivens plaintiff, the courts must "pay[] particu lar heed * * * to any special factors counselling hesita tion before authorizing a new kind of federal litigation") (quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)). This Court has already suggested that such a limitation on Bivens remedies would be appropriate if the Fourth Amendment were held to govern actions that the mili tary took against aliens abroad. See Verdugo-Urquidez, 494 U.S. at 273-274. And the District of Columbia Cir cuit has previously held that no damages remedy should be available "against military and foreign policy officials for allegedly unconstitutional treatment of foreign sub jects causing injury abroad." Sanchez-Espinoza v. Rea gan, 770 F.2d 202, 209 (1985).

3. The court of appeals' holding-based on District of Columbia tort law-that petitioners' claims under the ATS and the Geneva Conventions must be brought, if at all, against the United States under the FTCA (Pet. App. 15a-35a) does not warrant further review.

Under the Westfall Act, 28 U.S.C. 2679(b)(1), claims against federal employees for allegedly tortious acts done within the scope of their employment must pro ceed exclusively against the United States under the FTCA. See United States v. Smith, 499 U.S. 160, 163 (1991). The scope of employment is determined by ref erence to local respondeat superior law. Haddon v. United States, 68 F.3d 1420, 1422-1423 (D.C. Cir. 1995). Petitioners have not contested the lower courts' selec tion of the District of Columbia as the relevant locality here. Pet. App. 18a, 114a.

As in the court of appeals (see Pet. App. 20a-21a), petitioners challenge only one component of the scope- of-employment test under District of Columbia law: whether the acts in question are "incidental" to an em ployee's duties, and thus "of the kind [the employee] is employed to perform." Restatement (Second) of Agency § 228(1) (1958); see Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003) (explaining that "District of Columbia law * * * looks to the Restatement (Second) of Agency (1958) in defining scope of employment").

Petitioners contend (Pet. 36) that "[t]orture is not incidental to military operations." They cite court of appeals cases holding that torture is illegal and criminal (both in this country and abroad), see Nuru v. Gonzales, 404 F.3d 1207, 1222-1223 (9th Cir. 2005); Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980); Khouzam v. Hogan, 529 F. Supp. 2d 543, 552 (M.D. Pa. 2008), or that, in specific circumstances, acts of torture were not attributable to a foreign agency or instrumentality for purposes of the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. 1602 et seq., see In re Estate of Marcos Human Rights Litig., 25 F.3d 1467, 1472 (9th Cir. 1994), cert. denied, 513 U.S. 1126 (1995); Zuncax v. Gramajo, 886 F. Supp. 162, 175-176 & n.10 (D. Mass. 1995). Peti tioners do not, however, account for the case law ex plaining what conduct is within the scope of employ ment.

Under the District of Columbia law of respondeat superior, the fact that an act is illegal or otherwise a crime does not necessarily mean that it is outside the scope of employment, because the focus of the inquiry is not "the nature of the tort," but whether the "underlying dispute or controversy" was "originally undertaken on the employer's behalf." Council on Am. Islamic Rela tions v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006) (quoting Weinberg v. Johnson, 518 A.2d 985, 992 (D.C. 1986)); see Pet. App. 23a, 25a-26a. In other words, "[c]onduct is 'incidental' to an employee's legitimate du ties" if it is "a direct outgrowth of the employee's in structions or job assignment." Haddon, 68 F.3d at 1424 (citation omitted). Thus, as the court of appeals dis cussed (Pet. App. 23a-24a), cases applying the relevant standard under District of Columbia law have held that employees were acting within the scope of their employ ment when they defamed political opponents or raped and shot their customers, because the underlying dis putes grew out of the employees' duties. See Ballenger, 444 F.3d at 664-665 (Congressman's allegedly defama tory statements held to be incidental to his office); Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976) (deliveryman's assault and rape of customer held to be within scope of employment); Johnson v. Weinberg, 434 A.2d 404, 409 (D.C. 1981) (laundromat worker's shooting of customer held to be within scope of employment).

Here, petitioners cannot deny that the conduct they challenge grew out of a dispute related to respondents' official functions. Indeed, their complaint expressly alleged that respondents were motivated by a desire to serve their employer in the course of their job duties (i.e., that they took action designed to elicit information about terrorism during interrogations).12 Pet. App. 168a-169a, 208a; see Ballenger, 444 F.3d at 665 ("even a partial desire to serve the master is sufficient"). Re spondents had specific responsibilities related to the custody and interrogation of detainees.13 Pet. App. 174a-178a. Petitioners cite no case suggesting that those whose jobs include interrogation and custody act outside the scope of their employment when they mis treat a detainee during an interrogation (any more than a deliveryman acts outside the scope of employment un der District of Columbia law by raping a customer). Moreover, petitioners' reliance (Pet. 36-37) on a Depart ment of State report, which states in its discussion of the Uniform Code of Military Justice that torture is not within the "scope" of a commanding officer's position (Pet. App. 231a), is inapposite because it does not ad dress the common law standard for determining the scope of employment in the relevant jurisdiction-here, the District of Columbia.

Finally, petitioners argue (Pet. 35-36) that the court of appeals' holding based on District of Columbia re spondeat superior law effectively endorsed the "repel lent proposition" that torture is an acceptable incident of interrogation. That reflects a misunderstanding of the Westfall Act. "Defining an employee's scope of em ployment is not a judgment about whether alleged con duct is deleterious or actionable; rather, this procedure merely determines who may be held liable for that con duct, an employee or his boss." Schneider v. Kissinger, 310 F. Supp. 2d 251, 265 (D.D.C. 2004), aff'd, 412 F.3d 190 (D.C. Cir. 2005), cert. denied, 547 U.S. 1069 (2006). The language of the Westfall Act covers claims alleging "wrongful" acts within the scope of employment, and makes no exception for acts that are not just wrongful but also illegal or repellent. 28 U.S.C. 2679(b)(1). As one court observed in a related context, "if the scope of an official's authority or line of duty were viewed as co extensive with the official's lawful conduct, then immu nity would be available only where it is not needed." Ramey v. Bowsher, 915 F.2d 731, 734 (D.C. Cir. 1990) (internal quotation marks and citation omitted). That is no less true when an employee claims immunity from suit under the Westfall Act because the plaintiff's sole recourse lies against the United States under the FTCA.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

 

 

GREGORY G. GARRE
Solicitor General
GREGORY G. KATSAS
Assistant Attorney General
JONATHAN F. COHN
Deputy Assistant Attorney
General
ROBERT M. LOEB
MATTHEW M. COLLETTE
Attorneys

 

 

NOVEMBER 2008

1 Noting that the legal issue could be decided on the basis of petition ers' allegations, the court of appeals also held that the district court did not abuse its discretion in denying petitioners' request for discovery on the scope of employment. Pet. App. 33a-34a.

2 The court declined to determine whether qualified immunity is available for claims brought under RFRA, but noted that "[b]oth the Supreme Court and our court have recognized qualified immunity is available to counter not only constitutional claims but also certain sta tutory claims." Pet. App. 46a n.20.

3 A second purpose articulated in the statute, to "provide a claim or defense to persons whose religious exercise is substantially burdened by government," 42 U.S.C. 2000bb(b)(2), merely begs the question pre sented here: whether aliens abroad are "persons" whose religious ex ercise may not be burdened except by meeting the compelling-interest standard.

4 While the Court in Vermilya-Brown Co. v. Connell, 335 U.S. 377 (1948), held that the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq., applied to aliens on a United States military base in Bermuda (and likened that base to Guantanamo), it also made it clear that anal ysis of the geographic application of a statute "depends upon the pur pose of the statute." Id. at 378, 390. In light of RFRA's purpose to re store the pre-Smith standard for free exercise claims, Vermilya- Brown's discussion of the status of Guantanamo does not establish that RFRA applies to aliens detained there.

5 Citing a brief from 1997, petitioners claim (Pet. 20-21) that the United States has previously argued that "RFRA expressly supple ments and extends protection to religious practices that may not be covered by the Constitution." In fact, the passage they cite from the earlier brief simply noted (and cited cases supporting the proposition) that RFRA created a "statutory right" rather than "new constitutional rights." U.S. Br. at 36-37 & n.40, City of Boerne v. Flores, 521 U.S. 507 (1997) (No. 95-2074). Of course RFRA protects "religious practices that may not be covered by the Constitution" (Pet. 20) as interpreted since Smith. But that does not mean that Congress intended the new statutory right to extend to practices that had never been seen to be protected by the First Amendment under the compelling-interest test.

6 The applicability of Boumediene to other constitutional provisions is at issue in several cases pending in the lower courts. See, e.g., In re Guantanamo Bay Detainee Litig., Misc. No. 08-442 (TFH) (D.D.C.) (Due Process); Hamdan v. Gates, No. 04-CV-1519-JR (D.D.C.) (Due Process, Ex post Facto, Bill of Attainder, Equal Protection); see also Khan v. Gates, No. 07-1324 (D.C. Cir.) (First Amendment).

7 Petitioners do not dispute Judge Brown's observation (Pet. App. 64a n.5) that they "assumed that qualified immunity is available [on the RFRA claim] and * * * thus waived any argument to the contrary" (except by showing that the right they assert was clearly established).

8 Certiorari is particularly unwarranted in light of the strength of respondents' argument that the right was not clearly established at the time they acted (an argument the court of appeals did not reach, see Pet. App. 47a n.20). Regardless of whether this Court overturns the requirement that lower courts conducting qualified-immunity analysis must decide whether a legal right exists before deciding whether that right was clearly established at the relevant time, see Pearson v. Callahan, 128 S. Ct. 1702, 1702-1703 (2008) (No. 07-751; argued Oct. 14, 2008), this Court has not felt itself bound to follow that framework, see Brosseau v. Haugen, 543 U.S. 194, 198 n.3 (2004) (per curiam), and the fact that this alternative ground for rejecting petitioners' claims exists provides an independent basis for denying certiorari. Cf. Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam) ("[T]his is a court of final review and not first view.") (quoting Matsu shita Elec. Indus. Co. v. Epstein, 516 U.S. 367, 399 (1996) (Ginsburg, J., concurring in part and dissenting in part)).

9 Petitioners' contention (Pet. 26) that Boumediene held that "the substantive guarantees of the Fifth and Fourteenth Amendments" apply to Guantanamo detainees is not supported by the passage they cite. In that passage, the Court merely acknowledged that separation- of-powers doctrine, "like the substantive guarantees of the Fifth and Fourteenth Amendments," protects "persons as well as citizens." 128 S. Ct. at 2246. It cited Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886), a case that involved aliens living in the United States. Accordingly, that passing statement cannot be read as a holding that the Fifth and Fourteenth Amendments always apply to aliens outside the United States.

10 The court of appeals also discussed several relevant cases before concluding that "it was not clearly established at the time of the alleged violations-nor even today-that a reasonable officer would know that Guantanamo is sovereign United States territory." Pet. App. 44a. To the extent that this Court's later decision in Boumediene casts doubt on the earlier case law about places where the United States is not de jure sovereign, it does not address the question here because Boumediene held only that detainees have a procedural right to habeas corpus, see p. 18, supra, and Boumediene certainly provides no basis for denying qualified immunity. It is axiomatic that federal officials cannot be held liable based on later developments in the law. See, e.g., Anderson, 483 U.S. at 640.

11 Petitioners rely (Pet. 32) on the discussion in Hope of an Alabama Department of Corrections regulation. But Hope did not use one form of illegality to establish a different one. Instead, the Court found that the Eighth Amendment right not to be subjected to a certain punish ment was clearly established by "Eleventh Circuit precedent" that addressed the Eighth Amendment question and a Department of Justice report that also addressed the constitutional question. 536 U.S. at 745-746. The prison regulation was discussed because it authorized the punishment in question only under conditions that were "analogous to the practice upheld" in the key Eleventh Circuit case, and because the violation of the regulation meant that the punishment had been implemented in a way that the Eleventh Circuit had previously "de scribed as impermissible" under the Eighth Amendment. Id. at 744.

12 By the same token, any suggestion (Pet. 35) that the court of appeals erred in holding that petitioners' alleged mistreatment was "foreseeable" cannot be reconciled with their allegation that the mis treatment was the result of "deliberate and foreseeable action" rather than "isolated or rogue actions." Pet. App. 168a; see also Pet. 23-24.

13 One respondent allegedly provided a legal opinion purporting to justify mistreatment of detainees as part of her job as a Chief Legal Advisor. Pet. App. 178a-179a. Providing a legal opinion is exactly the "kind" of task a legal advisor is employed to perform.