Detainees File Petition for Rehearing En Banc in Allaithi v. Rumsfeld

Yesterday, plaintiff-appellants in Allaithi v. Rumsfeld filed their petition for a rehearing en banc, two months after the D.C. Circuit affirmed the district court's ruling that six detainees subjected to prolonged detention and alleged mistreatment at Guantanamo did not sufficiently allege that the officials who authorized and supervised their detention acted outside the scope of their employment. The 21-page filing opens by stating that the decision rendered by the three-judge panel (Judges Janice Rogers Brown, David Tatel and Senior Judge A. Raymond Randolph) in June raises two questions of exceptional importance:

1. Whether Plaintiffs, who were held in detention facilities at Guantanamo Bay, which the Supreme Court has previously characterized as a possession or territory of the United States, are “persons” who may avail themselves of the protections of the Religious Freedom Restoration Act (“RFRA”); 2. Whether Plaintiffs have stated a plausible claim that the prolonged detention and abuse of individuals who had been expressly determined by Combatant Status Review Tribunals not to be enemy combatants falls outside the scope of employment of Defendants and individual guards.

The crux of the detainees' argument on the first question? The Supreme Court's recent decision in Burwell v. Hobby Lobby Stores Inc., 134 S. Ct. 2751 (2014).  Specifically, the detainees contend that Hobby Lobby establishes that they are "persons" under the Religious Freedom and Restoration Act (RFRA), and as such, are entitled to freedom from substantial burdens on their religious practices; Rasul I is no longer good law insofar as it limits RFRA's protection to persons who have successfully brought a free-exercise claim under the Constitution. The second question raises what has been the detainees' central argument in proceedings below: the detainees contend that the panel wrongly relied on Rasul I to find that the abuse and prolonged detention of non-enemy combatants was within the defendants' scope of employment, as Rasul I applies only to known and suspected enemy combatants. Moreover, the petition argues, the panel misapplied the relevant scope-of-employment test and the motion-to-dismiss standard by making inferences in favor of the government that were unwarranted at the motion-to-dismiss stage. For background on the decision below, see our summary of the D.C. Circuit's June 10, 2014 ruling against the appellants.