A Quibble Over Supplemental Authority in Hamad v. Gates

It's a battle over the latest case law in Hamad v. Gates,  a GTMO-related appeal now awaiting decision from the Ninth Circuit. After oral argument on June 5, the government noted certain supplemental authority: a recent---and, in the United States's view, persuasive---district court case from the Eastern District of Virginia, Ameur v. Gates.  On Friday, the plaintiffs responded with a missive of their own. A Sudanese national, Hamad was held initially at Bagram before his transfer to Guantanamo, but released in 2007.  Afterwards he sued (among others) the Secretary of Defense in his individual capacity, and sought money damages for violations of the Fifth Amendment, the Geneva conventions, and international human rights law.  The district court dismissed the complaint, but along the way also rejected two key government claims: both that 28 U.S.C. § 2241(e)(2) survived Boumediene and precluded lawsuit's like Hamad's, and that Gates was immune from suit.  The case nevertheless was tossed out because, according to the district court, Hamad had not sufficiently alleged Gates's personal connection to violations of Hamad's rights.   He appealed and the United States cross-appealed; the case was then briefed and argued. Then came Ameur, on June 20, followed a few weeks later by the United States's letter to the Ninth Circuit in Hamad.  The latter says, among other things: 

Pursuant to FRAP 28(j), we write to notify the Court of Ameur v. Gates, __ F. Supp. 2d __, 2013 WL 3120205 (E.D. Va. June 20, 2013). Like plaintiff here, the plaintiff in Ameur, Mammar Ameur, was formerly detained by the military at Bagram Airfield and Guantanamo Bay. Ameur brought a damages action against the same defendants Hamad sued here, in their individual capacities, for alleged violations of, inter alia, international law and the Fifth Amendment. Id. at *1. The Ameur court dismissed the complaint on multiple independent grounds.

As relevant here, Ameur held that 28 U.S.C. § 2241(e)(2) barred Ameur’s action. Id. at *4-7. In reaching this conclusion, the court held that § 2241(e)(2) survived Boumediene v. Bush, 553 U.S. 723 (2008), and that the Hamad district court’s contrary conclusion was “an unpersuasive outlier.” Ameur, 2013 WL 3120205, at *6. Ameur also asserted arguments concerning the applicability, severability, and constitutionality of § 2241(e)(2) that are virtually identical to those asserted by Hamad on pages 10-11 and 14-24 of his third brief on cross-appeal, but the court nonetheless held that § 2241(e)(2) barred the action. Cf. Pl’s Mem. In Opp., at 19-21, 23-28, Doc. 84, Ameur, No. 1:12-cv-823 (E.D. Va.).

In addition, Ameur held that the United States properly substituted itself under the Westfall Act for the individual defendants on Ameur’s international law claims. 2013 WL 3120205, at *7-11. In so holding, the court rejected the argument (also made by Hamad here) that claims asserted under the Alien Tort Statute, 28 U.S.C. § 1350, are not subject to substitution under the Westfall Act, id. § 2679(b)(2)(B). Ameur, 2013 WL 3120205, at *8. The court also held that state respondeat superior law governs the Westfall Act “scope of employment” inquiry, see 28 U.S.C. § 2679(b)(1), and that the defendants were acting within the scope of their employment under Virginia law. In reaching those conclusions, the court rejected arguments similar to those asserted by Hamad in this case, including Hamad’s argument that alleged jus cogens violations are outside of the scope of employment. Ameur, 2013 WL 3120205, at *9-11.

This takes us to Friday and Hamad's own letter filing.  It naturally bats away Ameur's significance for this appeal:

Pursuant to Fed. R. App. P. 28(j), plaintiff/appellant Adel Hassan Hamad respectfully submits this letter in response to Defendants' June 25, 2013, letter. Defendant claims that Ameur v. Gates, 2013 WL 3120205 (E.D. Va. June 20, 2013) supports his argument that 28 U.S.C. § 2241(e)(2) of the MCA survived Boumediene v. Bush, 553 U.S. 723 (2008). Ameur does not address the key arguments made here.

First, Ameur fails to address any of the constitutional arguments against (e)(2)’s survivability raised before this court. Second, Ameur fails to address whether (e)(2) can function independently of (e)(1). The Supreme Court has held that the first requirement of severability is that the remaining statute be able to function independently. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161 (2010). When it cannot, this is evidence of Congressional intent that it not be severable. Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (“Congress could not have intended a constitutionally flawed provision to be severed . . . if the balance of the legislation is incapable of functioning independently.”). For (e)(2) to function, its application would require the existence of (e)(1) or that its text be rewritten, which is a quintessentially legislative action. Ayotte v. Planned Parenthood of N. New England, 546

U.S. 320, 329 (2006); see also United States v. Reese, 92 U.S. 214, 221 (1875) (the statute was not severable when new words must be inserted to preserve a section). Ayotte cautioned against courts becoming legislative actors by upholding over-broad legislation and deciding how it should be applied. Ayotte, 546 U.S. at 330. Ameur even ignores the functionality requirement of the 4th Circuit. Pittston Co. v. United States, 368 F.3d 385, 401 (4th Cir. 2004) (a provision incapable of functioning independently “would be dispositive evidence that Congress would not have enacted it without the inclusion of [the unconstitutional provision]”). Finally, Ameur fails to explain why the Supreme Court did not save (e)(2) in Boumediene, when it had the opportunity to do so, just as with the statute in Ayotte.