Government Files Response to Al Janko's Petition for Rehearing En Banc

Today the government filed its response opposing Abdul Rahim Abdul Razak al Janko's petition for an en banc rehearing. Back in January, a three-judge panel of the D.C. Circuit affirmed the district court's decision that 28 U.S.C. § 2241(e)(2) bars the ex-detainee from bringing a damages action against U.S. officials for imprisoning him in Afghanistan and at Guantanamo. Al Janko's March 31 petition argued that the case merits a rehearing for two reasons: (1) the case raises an issue of “exceptional importance”: whether an individual who was never properly detained according to a federal court is nonetheless barred from bringing suit under the MCA, which bars access to the courts for those who have “been determined by the United States to have been properly detained as an enemy combatant”; and (2) the case raises an issue of constitutional importance: “whether Congress can legislate that the Executive may determine on a case-by-case basis, in an admittedly flawed and prejudicial process, whether the courts have jurisdiction over a given case.” In its filing, the government argues the D.C. Circuit's's holding is correct and a rehearing unwarranted because: (1) al Janko's action is barred by the plain terms of § 2241(e)(2), and (2) application of § 2241(e)(2) to al Janko's damages action is constitutional. The government writes:

This Court rightly held that the term “United States” in the statutory phrase “determined by the United States to have been properly detained as an enemy combatant,” 28 U.S.C. § 2241(e)(2), means the Executive Branch alone. As this Court explained, the term “United States” means the Executive Branch elsewhere in § 2241(e)(2); the same “determin[ation] by the United States” language is used in 28 U.S.C. § 2241(e)(1) to reference an Executive Branch determination; and the statute’s enactment history illustrates that Congress meant for the Executive Branch alone to make the “determin[ation]” in § 2241(e)(2). Slip Op. (“Op.”) 6-17. This Court also correctly rejected Janko’s constitutional challenge to § 2241(e)(2). As this Court held in Al-Zahrani v. Rodriguez, 669 F.3d 315 (D.C. Cir. USCA Case #12-5017 Document #1495885 Filed: 06/03/2014 Page 8 of 232012), it is “eminently clear” from the Supreme Court’s immunity and “special factors” jurisprudence that damages actions are not constitutionally required, even when constitutional violations are alleged. Id. at 319-20. Accordingly, it was constitutional for Congress to bar damages actions in § 2241(e)(2) and instead channel the judicial review of military detainee claims through alternative mechanisms. Id.; Hamad, 732 F.3d at 1003-04.

See our recap of the October oral argument here.