Government Files Response in Allaithi v. Rumsfeld

The government has filed its response to six Guantanamo detainees' August 25, 2014 petition for en banc rehearing in Allaithi v. Rumsfeld. The detainees argued that (1) the Supreme Court's recent decision in Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014) established that they were entitled to freedom from substantial burdens on their religious practices as "persons" under the Religious Freedom and Restoration Act (RFRA, and (2) the panel incorrectly relied on Rasul I to find that the detainees' treatment fell within defendants' scope of employment, as Rasul I applies only to enemy combatants. The government spends most of its 15-page brief arguing that the panel corrected affirmed the dismissal of the detainees' RFRA claims, as Guantanamo detainees do not constitute "persons" under the statute even after Hobby Lobby, and defendants are entitled to qualified immunity. Addressing the detainees' two more minor arguments in brief, the government contends that (1) the panel correctly determined that the defendants were acting within the scope of their employment, such that the United States properly substituted itself for the defendants under the Westfall Act, and that (2) the detainees forfeited any challenge to the dismissal of the "John Doe" defendants by failing to raise the claim in their appellate briefs or at oral argument.