Rasul v. Myers

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2007 Decided January 11, 2008

No. 06-5209

SHAFIQ RASUL ET AL.,

APPELLANTS/CROSS-APPELLEES

v.

RICHARD MYERS, AIR FORCE GENERAL ET AL.,

APPELLEES/CROSS-APPELLANTS

Consolidated with

06-5222

Appeals from the United States District Court

for the District of Columbia

(No. 04cv01864)

Eric L. Lewis argued the cause for the appellants/cross-

appellees. A. Katherine Toomey, Sarah L. Knapp, Elizabeth A.

Wilson, Michael Ratner, Jennifer M. Green and Shayana

Kadidal were on brief.

Sidney S. Rosdeitcher was on brief for amici curiae National

Institute of Military Justice et al. in support of the appellants.

William J. Aceves and Paul Hoffman were on brief for amici

curiae International Law Scholars and Human Rights

2

Organization in support of the appellants.

Stephen M. Truitt and Michael Rapkin were on brief for

amici curiae Counsel for Guantanamo Detainees et al. in support

of the appellants.

Jerome A. Hoffman and Christopher C. Lund were on the

brief for amici curiae National Association of Evangelicals et al.

in support of the cross-appellees.

Jonathan F. Cohn, Deputy Assistant Attorney General,

United States Department of Justice, argued the cause for the

appellees/cross-appellants. Peter D. Keisler, Assistant Attorney

General, Gregory D. Katsas and Jeffrey S. Bucholtz, Principal

Deputy Associate Attorneys General, and Robert M. Loeb and

Matthew M. Collette, Attorneys, United States Department of

Justice, were on brief. R. Craig Lawrence, Assistant United

States Attorney, entered an appearance.

Before: HENDERSON, RANDOLPH and BROWN, Circuit

Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

Separate concurring opinion filed by Circuit Judge BROWN.

KAREN LECRAFT HENDERSON, Circuit Judge: Appellants

Shafiq Rasul, Asif Iqbal, Rhuhel Ahmed and Jamal Al-Harith

(plaintiffs or detainees) sued former Secretary of Defense

Donald Rumsfeld (Rumsfeld) and defendant military officers1

(defendants) under the Alien Tort Statute (ATS), 28 U.S.C.

§ 1350, the Geneva Conventions, 6 U.S.T. 3316 and 6 U.S.T.

1

The other appellees include Air Force General Richard Myers,

Army Major General Geoffrey Miller, Army General James T. Hill,

Army Major General Michael E. Dunlavey, Army Brigadier General

Michael Lehnet, Army Colonel Nelson J. Cannon, Army Colonel

Terry Carrico, Army Lieutenant Colonel William Cline and Army

Lieutenant Colonel Diane Beaver.

3

3516, the Fifth and Eighth Amendments to the United States

Constitution and the Religious Freedom Restoration Act

(RFRA), 42 U.S.C. §§ 2000bb et seq., seeking damages for their

alleged illegal detention and torture at the United States Naval

Base at Guantanamo Bay, Cuba (Guantanamo). The defendants

argued in district court that the ATS and Geneva Conventions

claims were barred by the Federal Employees Liability Reform

and Tort Compensation Act of 1988 (Westfall Act), Pub. L. No.

100-694, 102 Stat. 4563 (1988) (amending 28 U.S.C. §§ 2671,

2674, 2679) and that they were entitled to qualified immunity

on the constitutional and RFRA claims. The district court

agreed that the Federal Tort Claims Act (FTCA), 28 U.S.C.

§§ 2679 et seq., provided the exclusive remedy for the

defendants’ allegedly tortious conduct and thus granted the

defendants’ motion to dismiss the ATS and Geneva Conventions

claims. Rasul v. Rumsfeld, 414 F. Supp. 2d 26, 30-36 (D.D.C.

2006). The district court also dismissed the constitutional

claims, holding that the defendants were entitled to qualified

immunity from suit. Id. at 41-44. It denied, however, the

defendants’ motion to dismiss the RFRA claim. Rasul v.

Rumsfeld, 433 F. Supp. 2d 58 (D.D.C. 2006). The plaintiffs now

appeal the dismissal of the ATS, Geneva Conventions and

constitutional claims and the defendants appeal the denial of

their motion to dismiss the RFRA claim. For the reasons set

forth below, we affirm the district court’s dismissal of the ATS,

Geneva Conventions and constitutional claims and reverse its

denial of the motion to dismiss the RFRA claim.

I.

The complaint alleges the following facts. Shafiq Rasul

(Rasul), Asif Iqbal (Iqbal), Rhuhel Ahmed (Ahmed) and Jamal

Al-Harith (Al-Harith) are citizens and residents of the United

Kingdom. Compl. ¶ 1. Rasul, Iqbal and Ahmed allege that in

October 2001 they traveled to Afghanistan from Pakistan to

provide humanitarian relief. Id. ¶ 35. They claim that General

4

Rashid Dostum, an Uzbek warlord allied with the United States

as part of the Northern Alliance, captured them in northern

Afghanistan on November 28, 2001 and transferred them to

United States custody in Afghanistan one month later. Id. ¶¶ 2,

42-44. In early 2002, they were transported to Guantanamo,

where they remained as detainees until their repatriation to the

United Kingdom in 2004. Id. ¶¶ 5, 58-65.

Al-Harith asserts that he traveled to Pakistan on October 2,

2001 to attend a religious retreat. Id. ¶ 3. Upon being advised

to leave the country because of reported animosity towards

British citizens, Al-Harith alleges that he tried to return to

Europe overland via Iran and Turkey. Id. According to Al-

Harith, while still in Pakistan, the truck in which Al-Harith was

traveling was hijacked at gunpoint by Afghans. Id. He claims

he was then forced into another vehicle which crossed the border

into Afghanistan where he was subsequently turned over to the

Taliban. Id. Al-Harith asserts that the Taliban accused him of

being a British spy and imprisoned him. Id. He claims he was

released in 2001 when the Taliban fell and he contacted British

embassy officials to secure his evacuation. Id. United States

forces, in coordination with British officials, detained Al-Harith

and transported him to Guantanamo in February 2002. Id. ¶¶ 3-

4, 63.

On December 2, 2002, defendant Rumsfeld approved for use

at Guantanamo interrogation techniques such as the use of stress

positions, intimidation by the use of dogs, twenty-hour

interrogation sessions, shaving of detainees’ facial hair, isolation

in darkness and silence and the use of “mild non-injurious

physical contact.” Id. ¶ 9. Rumsfeld subsequently withdrew

approval of these tactics in April 2003. Id. ¶ 11. The detainees,

however, allege that they were systematically and repeatedly

tortured throughout their two-year detention at Guantanamo. Id.

¶ 4. For example, they claim they were beaten, shackled in

painful stress positions, threatened by dogs, subjected to extreme

5

temperatures and deprived of adequate sleep, food, sanitation,

medical care and communication. Id. ¶ 6. They also allege that

they were harassed while practicing their religion, id., including

forced shaving of their beards, banning or interrupting their

prayers, denying them copies of the Koran and prayer mats and

throwing a copy of the Koran in a toilet bucket. Id. ¶¶ 58, 78,

92, 97, 206.

In addition to Rumsfeld’s approval of these interrogation

techniques, the detainees assert that the other defendants

implemented, supervised and condoned their torture and

detention. See id. ¶ 154 (“[A]ll [d]efendants were aware that

[p]laintiffs were tortured . . . .”); id. ¶ 155 (“[A]ll [d]efendants

took no steps to prevent the infliction of torture . . . .”); id ¶ 156

(“[A]ll [d]efendants authorized and encouraged the infliction of

torture . . . .”). For example, plaintiffs allege that defendant

Myers, a United States Air Force General and Chairman of the

Joint Chiefs of Staff, was informed of the torture and

mistreatment of Guantanamo detainees and, as the senior

military officer charged with maintaining the custody of the

detainees, condoned their torture. Id. ¶ 20. They assert that

defendant Miller, a Major General in the United States Army,

implemented and condoned the torture and mistreatment of

Guantanamo detainees as the Commander of Joint Task Force-

GTMO. Id. ¶ 21. They claim that defendant Hill, a General in

the United States Army and Commander of the United States

Southern Command, sought approval for several abusive

interrogation techniques used on them. Id. ¶ 22. They allege

that defendant Dunlavey, a Major General in the United States

Army, implemented and condoned torture and cruel, inhuman

and degrading acts as the Commander of Joint Task Force

160/170, which succeeded Joint Task Force-GTMO at

Guantanamo. Id. ¶ 23. They assert that defendant Hood, a

Brigadier General in the United States Army, operated the

detention facilities at Guantanamo and had supervisory

responsibility for the detainees as the Commander of Joint Task

6

Force-GTMO. Id. ¶ 24. They claim that defendant Lehnert, a

Brigadier General in the United States Marine Corps, was

responsible for the construction and operation of Camp X-Ray

and Camp Delta at Guantanamo and had supervisory

responsibility for detainees. Id. ¶ 25. They allege that defendant

Cannon, a Colonel in the United States Army, had supervisory

responsibility for the detainees as Commander of Camp Delta at

Guantanamo. Id. ¶ 26. They assert that defendant Carrico, also

a Colonel in the United States Army, had supervisory

responsibility for the detainees as Commander of Camp Delta

and Camp X-Ray at Guantanamo. Id. ¶ 27. Finally, they claim

that defendant Beaver, a Lieutenant Colonel in the United States

Army and Chief Legal Adviser to defendant Dunlavey, provided

an opinion purporting to justify the torture and mistreatment of

detainees. Id. ¶ 28.

The plaintiffs were released in March 2004 and returned to

the United Kingdom. Id. ¶ 5. On October 27, 2004, they filed a

complaint alleging seven causes of action against defendant

Rumsfeld and the defendant military officers: (1) prolonged

arbitrary detention under the ATS, (2) torture under the ATS, (3)

cruel, inhuman or degrading treatment under the ATS, (4)

violations of the Geneva Conventions, (5) violations of the

Eighth Amendment, (6) violations of the Fifth Amendment and

(7) violations of RFRA. Compl. ¶¶ 159-210. They claim they

suffered physical and psychological trauma as a result of their

detention at Guantanamo. Id. ¶¶ 138-140. On March 16, 2005,

all of the defendants moved to dismiss for lack of subject matter

jurisdiction and failure to state a claim pursuant to Federal Rule

of Civil Procedure 12(b)(1) and (6). Rasul, 414 F. Supp. 2d at

29.

The district court dismissed the ATS, Geneva Conventions

and constitutional claims, concluding, as discussed infra pp. 11-

27 that pursuant to the Westfall Act, the FTCA provides the

exclusive remedy for torts by a federal official or employee

7

committed within the scope of his employment. Rasul, 414 F.

Supp. 2d at 31 (citing 28 U.S.C. § 2679(b)(1)). The court held

that the ATS and Geneva Conventions claims were covered by

the Westfall Act because the defendants’ authorization,

implementation and supervision of the alleged torture and

detention of the detainees was within the scope of their

employment. Id. at 32-36. Relying on the Restatement

(Second) of Agency § 228(1) (1957), the court concluded that

the defendants’ conduct was incidental to the conduct

authorized, id. at 33-34, took place within the time and place

limitations sanctioned by the United States, id. at 34, was done

to further the interests of the United States, id. at 35-36, and was

foreseeable, id. at 36. It further ruled that neither the ATS

claims nor the Geneva Conventions claim fit within one of the

statutory exceptions to the Westfall Act. Id. at 36-38.

Accordingly, because the plaintiffs had failed to exhaust their

administrative remedies as required by the FTCA, see McNeil v.

United States, 508 U.S. 106, 113 (1993) (“The FTCA bars

claimants from bringing suit in federal court until they have

exhausted their administrative remedies.”), the court dismissed

the claims under Federal Rule of Civil Procedure 12(b)(1).

Rasul, 414 F. Supp. 2d at 39.

Regarding the two constitutional claims brought pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971),2 the defendants argued, first,

that the plaintiffs had failed to allege the violation of any right

protected by the Constitution because the plaintiffs, as

Guantanamo detainees, were aliens located outside sovereign

2

The holding in Bivens permits a plaintiff to bring an action in

federal court against a federal officer/employee for the violation of his

constitutional rights. 403 U.S. at 389. A Bivens suit is the federal

counterpart of a claim brought pursuant to 42 U.S.C. § 1983 against

a state or local officer/employee for the violation of the claimant’s

constitutional rights.

8

United States territory at the time of the alleged violations and

therefore did not possess any constitutional right. Rasul, 414 F.

Supp. 2d at 39. Even assuming the plaintiffs had alleged the

violation of such a right, the defendants continued, such a right

was not clearly established at the time of the violations.3 Id. at

41-44.

The district court reserved judgment regarding the

defendants’ first argument because, at the time, the decision in

Khalid v. Bush, 355 F. Supp. 2d 311 (D.D.C. 2005), holding that

Guantanamo detainees were not entitled to constitutional

protection, was on appeal. Rasul, 414 F. Supp. 2d at 40-41. It

then concluded that the defendants were entitled to qualified

immunity from suit under Bivens because any constitutional

right the detainees possessed was not clearly established at the

time it was allegedly violated. Id. at 41. Relying on the United

States Supreme Court’s holdings in Johnson v. Eisentrager, 339

U.S. 763 (1950), and United States v. Verdugo-Urquidez, 494

U.S. 259 (1990), the district court concluded that “the

Constitution applies only once aliens were within the territory of

the United States and developed substantial contacts in this

3

In Saucier v. Katz, 533 U.S. 194, 201 (2001) the Supreme Court

affirmed that under the doctrine of qualified immunity, a federal

official alleged to have violated a plaintiff’s constitutional right is

shielded from liability if the right was not clearly established at the

time of the violation. See also Mitchell v. Forsyth, 472 U.S. 511, 517

(1985) (“‘[G]overnment officials performing discretionary functions,

generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have known.”’ (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))). Although Saucier

involved a section 1983 claim, “the law of immunity in a Bivens claim

against a federal official mirrors that in a section 1983 claim against

a state official.” Moore v. Valder, 65 F.3d 189, 192 (D.C. Cir. 1995).

9

country.” Id. at 44.4 The court noted that “plaintiffs have

provided no case law, and the court finds none, supporting a

conclusion that military officials would have been aware, in

light of the state of the law at the time, that detainees should be

afforded the rights they now claim.” Id.

The court reached the opposite conclusion regarding the

plaintiffs’ RFRA claim. Rasul, 433 F. Supp. 2d at 71. As

discussed infra pp. 35-43, RFRA provides that the “Government

shall not substantially burden a person’s exercise of religion”

unless the Government “demonstrates that application of the

burden to the person – (1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of

furthering that compelling governmental interest.” 42 U.S.C.

§ 2000bb-1(a)-(b). The district court first considered whether

RFRA applied to Guantanamo. Rasul, 433 F. Supp. 2d at 62-67.

It rejected the defendants’ argument that RFRA does not apply

extraterritorially based on its interpretation of 42 U.S.C.

§ 2000bb-2(2), which defines “Government” to include “the

District of Columbia, the Commonwealth of Puerto Rico, and

each territory and possession of the United States.” 42 U.S.C.

§ 2000bb-2(1), (2) (emphasis added). It reasoned that if

4

In Johnson v. Eisentrager, the Supreme Court held that German

nationals who were convicted of war crimes committed during World

War II and were imprisoned at a United States army base in Germany

had no constitutional right to test the legality of their detention by way

of habeas corpus. In United States v. Verdugo-Urquidez, the Court

held that the Fourth Amendment did not apply to a search by DEA

agents of a Mexican citizen’s residence in Mexico. It summarized

Eisentrager as “reject[ing] the claim that aliens are entitled to Fifth

Amendment rights outside the sovereign territory of the United States”

and described other cases involving aliens as “establish[ing] only that

aliens receive constitutional protections when they have come within

the territory of the United States and developed substantial

connections with this country.” 494 U.S. at 269, 271.

10

“territory and possession” “is to have any meaning, it must

include lands such as [Guantanamo],” over which the United

States exercises “perhaps as much control as it possibly could

short of ‘ultimate sovereignty.’” Id. at 65 (quoting Rasul v.

Bush, 542 U.S. 466, 475 (2004)). Next, it rejected the

defendants’ assertion that RFRA does not apply to non-resident

aliens. Id. at 67. It noted that “RFRA expressly protects the

religious exercise of ‘persons,’ a broadly applicable term,

commonly including aliens.” Id. at 66. It reasoned that

“because RFRA explicitly applies to ‘persons,’ the defendants,

at a bare minimum, must demonstrate that Congress specifically

intended to vest the term ‘persons’ with a definition . . . at odds

with its plain meaning” and noted that “the defendants cite no

authority to support their construction of RFRA.” Id. at 67.

Accordingly, the district court concluded that “RFRA applies to

U.S. government action at the Naval Base in Guantanamo Bay.”

Id.

The district court then rejected the defendants’ assertion of

qualified immunity from RFRA liability. Applying the first step

of Saucier v. Katz, 533 U.S. 194, 201 (2001), it held that the

facts alleged constituted a violation of RFRA. 433 F. Supp. 2d

at 68-69. Specifically, it found that the defendants’ alleged

harassment of the plaintiffs in the practice of their religion,

including “[f]lushing the Koran down the toilet and forcing

Muslims to shave their beards,” “falls comfortably within the

conduct prohibited from government action by RFRA.” Id. at

69. Applying step two of Saucier, the district court found that

the plaintiffs’ rights under RFRA were clearly established at the

time of the alleged violations, declaring that “[t]he statute’s

unambiguous application to U.S. territories and possessions

should have placed the defendants on notice that they were

prohibited from the alleged conduct in Guantanamo.” Id. at 71

(footnote omitted). While “recogniz[ing] that the defendants are

not constitutional law scholars well versed on the jurisdictional

reach of RFRA,” it concluded that “given the abhorrent nature

11

of the allegations and given our Nation’s fundamental

commitment to religious liberty, it seems to this court that in this

case a reasonable official would understand that what he is

doing violates that right.” Id. at 71 (internal quotations and

citations omitted).

The plaintiffs appeal the dismissal of the ATS, Geneva

Conventions and Bivens claims pursuant to 28 U.S.C. § 1291.

The defendants’ interlocutory appeal of the denial of qualified

immunity on the RFRA claim is pursuant to the collateral order

doctrine “‘to the extent that [the denial] turns on an issue of

law.’” Int’l Action Ctr. v. United States, 365 F.3d 20, 23 (D.C.

Cir. 2004) (quoting Mitchell v. Forsyth, 472 U.S. 511, 530

(1985)).

II.

We review the district court’s legal conclusions de novo.

Cummings v. Dep’t of the Navy, 279 F.3d 1051, 1053 (D.C. Cir.

2002) (“‘[W]e apply the de novo standard of review to the

district court’s application of law to undisputed fact[s].’”

(quoting Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir.

1998)) (alterations in Cummings)). We “accept as true the facts

that [the plaintiffs] allege[] in [their] complaint” in reviewing

the district court’s disposition of the defendants’ motion to

dismiss. Id. at 1053.

A. The ATS Claims

The plaintiffs brought three claims for violations of the law

of nations pursuant to the Alien Tort Statute (ATS) based on the

defendants’ alleged infliction of “prolonged arbitrary detention,”

Compl. ¶¶ 159-66, “torture,” id. ¶¶ 167-72, and “cruel, inhuman

or degrading treatment.” Id. ¶¶ 173-79. As noted earlier, the

plaintiffs claim that they were beaten, shackled in painful stress

positions, threatened by dogs, subjected to extreme

temperatures, deprived of adequate sleep, food, sanitation,

medical care and communication and harassed while practicing

12

their religion. Id. ¶ 6. They assert that, in December 2002,

defendant Rumsfeld approved the use of these interrogation

techniques and others, including shaving of detainees’ facial

hair, isolation in darkness and silence and the use of “mild non-

injurious physical contact.” Id. ¶ 9. According to the plaintiffs,

the other defendants authorized, implemented, supervised and

condoned their torture and detention, id. ¶¶ 20-28, 154-56, and

thereby violated customary international law. Id. ¶¶ 163, 169,

176.

The Alien Tort Statute provides that “[t]he district courts

shall have original jurisdiction of any civil action by an alien for

a tort only, committed in violation of the law of nations or a

treaty of the United States.” 28 U.S.C. § 1350. The district

court concluded, however, that pursuant to the Westfall Act, the

plaintiffs’ claims were cognizable only under the FTCA because

the defendants’ alleged conduct occurred within the scope of

their office/employment. Rasul, 414 F. Supp. 2d at 36. It then

held that it lacked subject matter jurisdiction because the

plaintiffs failed to exhaust their administrative remedies as

required by the FTCA. Id. at 39 (citing Simpkins v. District of

Columbia Gov’t, 108 F.3d 366, 371 (D.C. Cir. 1997) (“This

court and the other courts of appeals have treated the FTCA’s

requirement of filing an administrative complaint with the

appropriate agency prior to instituting an action as

jurisdictional.”)).5

In pertinent part, the Westfall Act provides:

Upon certification by the Attorney General that the

defendant employee was acting within the scope of his

office or employment at the time of the incident out of

which the claim arose, any civil action or proceeding

commenced upon such claim in a United States district

court shall be deemed an action against the United States

5

See discussion infra pp. 23-25.

13

under the provisions of this title and all references

thereto, and the United States shall be substituted as the

party defendant.

28 U.S.C. § 2679(d)(1). By this provision, the Westfall Act

makes the FTCA remedy “exclusive of any other civil action or

proceeding for money damages” for any tort committed by a

federal official or employee “while acting within the scope of

his office or employment.” 28 U.S.C. § 2679(b)(1).

While the Attorney General’s certification “‘does not

conclusively establish as correct the substitution of the United

States as defendant in place of the employee,’” it constitutes

“prima facie evidence that the employee was acting within the

scope of his employment.” Council on Am. Islamic Relations v.

Ballenger, 444 F.3d 659, 662 (D.C. Cir. 2006) (per curiam)

(quoting Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434

(1995)). The plaintiffs bear the burden of challenging the

certification by “‘coming forward with specific facts rebutting

the certification.’” Ballenger, 444 F.3d at 662 (quoting Stokes

v. Cross, 327 F.3d 1210, 1214 (D.C. Cir. 2003)). The court then

determines whether the conduct falls within the scope of

employment, conducting an evidentiary hearing if necessary.

Kimbro v. Velten, 30 F.3d 1501, 1508 (D.C. Cir. 1994), cert.

denied, 515 U.S. 1145 (citing Wang v. United States, 947 F.2d

1400, 1402 (9th Cir. 1991); Melo v. Hafer, 13 F.3d 736, 747 (3d

Cir. 1994)). If the court determines that the employee acted

within the scope of his employment, “the case is, inter alia,

restyled as an action against the United States that is governed

by the [FTCA].” Ballenger, 444 F.3d at 662.

“Scope of employment questions are governed by the law of

the place where the employment relationship exists.” Majano

v. United States, 469 F.3d 138, 141 (D.C. Cir. 2006). We look,

then, “to the decisions of the Court of Appeals for the District

of Columbia for our guidance on the local law.” Id. “‘As its

framework for determining whether an employee acted within

14

the scope of employment, the Court of Appeals for the District

of Columbia looks to the Restatement (Second) of Agency

(1957).’” Id. (quoting Haddon v. United States, 68 F.3d 1420,

1423 (D.C. Cir. 1995), overruled on other grounds, Osborn v.

Haley, 127 S. Ct. 881 (2007)). According to the Restatement,

the “‘[c]onduct of a servant is within the scope of employment

if, but only if: (a) it is of the kind he is employed to perform; (b)

it occurs substantially within the authorized time and space

limits; (c) it is actuated, at least in part, by a purpose to serve the

master, and (d) if force is intentionally used by the servant

against another, the use of force is not unexpectable by the

master.’” Ballenger, 444 F.3d at 663 (quoting Restatement

(Second) of Agency § 228(1) (1958)). “‘Conduct of a servant is

not within the scope of employment if it is different in kind from

that authorized, far beyond the authorized time or space limits,

or too little actuated by a purpose to serve the master.’” Id.

(quoting Restatement (Second) of Agency § 228(2)).

On March 10, 2005, the Attorney General duly certified that

“[o]n the basis of the information now available,” all of the

defendants were acting within the scope of their employment “at

the time of the conduct alleged in the complaint.” Certification

of Scope of Employment (App. 60.) Applying the four

Restatement factors, the district court concluded that “the

alleged actions of the defendants were within the scope of their

employment.” 414 F. Supp. 2d at 36. First, it agreed with the

defendants that their alleged authorization, implementation and

supervision of torture was “‘incidental to the conduct

authorized.’” Id. at 33 (quoting Restatement (Second) of

Agency § 229). It noted that the United States authorized

military personnel in Guantanamo “to exercise control over the

detainees and question the detainees while in the custody of the

United States,” id. at 34 (citing Authorization for Use of

Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)), and

that “torture is a foreseeable consequence of the military’s

detention of suspected enemy combatants.” Id. It also

15

emphasized that the “complaint alleges torture and abuse tied

exclusively to the plaintiffs’ detention in a military prison and

to the interrogations conducted therein.” Id. Examining the

second factor, the district court observed that “the parties do not

dispute that the defendants’ actions took place within the time

and place limitations sanctions [sic] by the United States.” Id.

Regarding the third factor, the district court ruled that the

defendants “were acting, at least in part, to further the interests

of their employer, the United States.” Id. at 35-36. It noted that

the plaintiffs did “not allege that the tortious actions arose

purely from personal motives, but claim[ed] that the defendants’

actions are inextricably intertwined with their respective roles in

the military.” Id. at 35. It also observed that “[t]he plaintiffs

have not proffered any evidence that would lead this court to

believe that the defendants had any motive divorced from the

policy of the United States to quash terrorism around the world.”

Id. And regarding the fourth factor, the district court concluded

that while the alleged “aggressive techniques may be

sanctionable within the military command, . . . the fact that

abuse would occur is foreseeable.” Id. at 36. It emphasized that

“the heightened climate of anxiety, due to the stresses of war

and pressures after September 11 to uncover information leading

to the capture of terrorists, would naturally lead to a greater

desire to procure information and, therefore, more aggressive

techniques for interrogations.” Id.

The plaintiffs do not contest that the second, third and fourth

factors listed in section 228(1) of the Restatement support the

conclusion that the defendants acted within the scope of their

employment in authorizing, implementing, supervising and

condoning the plaintiffs’ alleged torture and detention. They do

challenge the district court’s conclusion that the defendants’

alleged authorization, supervision and implementation of torture

was incidental to the conduct authorized, claiming that the

defendants’ conduct “was never authorized,” was “seriously

criminal,” “has long [been] condemned” by the United States

16

and was a “substantial departure from the government’s ‘normal

method’ of detaining and interrogating persons of interest.”

Appellant’s Br. 22, 25. Alternatively, the plaintiffs assert that

even if the defendants’ conduct falls within the scope of their

employment, their claims come within the exception included in

the Westfall Act for “a civil action against an employee of the

Government . . . which is brought for a violation of the

Constitution of the United States.” 28 U.S.C. § 2679(b)(2)(A).

Finally, the plaintiffs argue that the district court erred in

dismissing their claims without allowing them to conduct

discovery.

1. Scope of Employment

According to the detainees, we cannot conclude that the

formulation, approval and implementation of a policy of torture

is “of the kind” of conduct the defendants were employed to

perform. To be “of the kind” of conduct an individual is

employed to perform, the Restatement explains that the

“conduct must be of the same general nature as that authorized,

or incidental to the conduct authorized.” Restatement (Second)

of Agency § 229(1). The defendants respond that “[w]here

high-level military officials are charged with winning the war on

terror, and specifically with detaining and obtaining information

from suspected terrorists, the officials’ policies on detention and

interrogation, and their supervision of the implementation of

those policies, is at least ‘incidental’ to those duties.”

Appellees’ Br. 18.6

In Haddon, we held that whether conduct is incidental

depends on whether the conduct is a “direct outgrowth” of an

employment assignment:

6

Although the plaintiffs also assert that the defendants’ alleged

conduct was not “the same general nature as was authorized,”

Restatement (Second) of Agency § 229(1), we need not reach this

issue because of our conclusion that the alleged conduct was

“incidental to the conduct authorized.”

17

According to the D.C. Court of Appeals, conduct is

“incidental” to an employee's legitimate duties if it is

“foreseeable.” “Foreseeable” in this context does not

carry the same meaning as it does in negligence cases;

rather, it requires the court to determine whether it is fair

to charge employers with responsibility for the

intentional torts of their employees. To be foreseeable,

the torts must be “‘a direct outgrowth of the employee’s

instructions or job assignment.’”

68 F.3d at 1424 (quoting Boykin v. District of Columbia, 484

A.2d 560, 562 (D.C. 1984) (quoting Penn Cent. Transp. Co. v.

Reddick, 398 A.2d 27, 32 (D.C. 1979))).

More recently, in Ballenger, although we did not explicitly

use Boykin’s “direct outgrowth language,” we nonetheless

emphasized that whether conduct is incidental depends “on the

underlying dispute or controversy, not on the nature of the tort.”

444 F.3d at 664 (internal quotation omitted). We explained that

the “incidental” prong “is broad enough to embrace any

intentional tort arising out of a dispute that was originally

undertaken on the employer’s behalf.” Id. (internal quotation

omitted). In Ballenger, we examined whether a congressman’s

allegedly defamatory comments made during a telephone

conversation fell within the scope of his office. We explained

that “[t]he appropriate question, then, is whether that telephone

conversation—not the allegedly defamatory sentence—was the

kind of conduct Ballenger was employed to perform.” Id.

Because “[s]peaking to the press during regular work hours in

response to a reporter’s inquiry falls within the scope of a

congressman’s ‘authorized duties,’” we held that the allegedly

defamatory statement was incidental to his office. Id. at 664-65.

Similarly, in Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976),

this Court upheld a jury verdict holding a deliveryman’s

employer liable because the employee acted within the scope of

his employment when he assaulted and raped a customer. The

18

Court reasoned that the assault “arose naturally and immediately

between [the deliveryman] and the plaintiff about two items of

great significance in connection with his job[:] the request of the

plaintiff . . . to inspect the mattress and springs before payment

. . . and [the deliveryman’s] insistence on getting cash rather

than a check.” Id. at 652. The Court also noted that “[t]he

dispute arose out of the very transaction which had brought [the

deliveryman] to the premises.” Id; see also Johnson v.

Weinberg, 434 A.2d 404, 409 (D.C. 1981) (upholding jury

verdict that laundromat employee acted within scope of his

employment when he shot customer during dispute over removal

of clothes from washing machine because “[t]he assault arose

out of the transaction which initially brought [the customer] to

the premises . . . and was triggered by a dispute over the conduct

of the employer’s business”); Howard Univ. v. Best, 484 A.2d

958, 987 (D.C. 1984) (holding that jury could reasonably find

that university dean acted within scope of employment when he

sexually harassed faculty member during faculty, administrative

and other professional meetings).

In contrast, the District of Columbia courts have held that

tortious conduct is not “incidental” to the performance of

authorized duties if the conduct underlying the tort is unrelated

to the employee’s instructions or job assignment. For example,

in Penn Central Transportation Co. v. Reddick, 398 A.2d 27

(D.C. 1979), the court held that a railroad employee was not

acting within the scope of his employment when he kicked a

taxicab driver while traveling between work sites. It concluded

that the employee’s action “was neither a direct outgrowth of

[his] instructions or job assignment, nor an integral part of the

employer’s business activity,” noting that “nothing in the

business of running a railroad . . . makes it likely that an assault

will occur between a railroad brakeman and a taxicab driver

over the celerity with which the latter will provide a taxicab ride

to the former.” Id. at 32; see also Boykin, 484 A.2d at 564

(teacher was not acting within scope of employment when he

19

sexually assaulted student because teacher was not then

performing teaching responsibilities). And our court, in

Haddon, held that a White House electrician was not acting

within the scope of his employment when he threatened the

White House chef with physical harm. 68 F.3d at 1425. We

noted that the electrician’s “alleged tort did not arise directly out

of his instructions or job assignment as a White House

electrician” because “[u]nlike the rape in Lyon and the shooting

in Johnson, the electrician’s threat did not stem from a dispute

over the performance of his work.” Id. (emphasis in original).

We also observed that “[u]nlike the sexual harassment in

Howard University, the electrician was not performing his

assigned duties at the time of the incident.” Instead, we

concluded that his conduct was “closer to the kick in Penn

Central and the assault in Boykin” because “[a]s in those cases,

the electrician’s conduct was completely unrelated to his official

responsibilities.” Id.

The plaintiffs concede that the “torture, threats, physical and

psychological abuse inflicted” on them, which were allegedly

approved, implemented, supervised and condoned by the

defendants, were “intended as interrogation techniques to be

used on detainees.” Compl. ¶ 141. In fact, as the district court

correctly noted, “the complaint alleges torture and abuse tied

exclusively to the plaintiffs’ detention in a military prison and

to the interrogations conducted therein.” 414 F. Supp. 2d at 34.

Under Ballenger, then, the underlying conduct—here, the

detention and interrogation of suspected enemy combatants—is

the type of conduct the defendants were employed to engage in.

Just as the telephone conversation in Ballenger, the mattress

delivery in Lyon and the removal of clothes from the washing

machine in Thompson was each part of the employee’s job

description or assignment, the detention and interrogation of

suspected enemy combatants is a central part of the defendants’

duties as military officers charged with winning the war on

terror. See Ballenger, 444 F.3d at 664; Lyon, 533 F.2d at 652;

20

Johnson, 434 A.2d at 409. While the plaintiffs challenge the

methods the defendants used to perform their duties, the

plaintiffs do not allege that the defendants acted as rogue

officials or employees who implemented a policy of torture for

reasons unrelated to the gathering of intelligence. Cf. Penn

Cent., 398 A.2d at 32; Boykin, 489 A.2d at 564. Therefore, the

alleged tortious conduct was incidental to the defendants’

legitimate employment duties.

Section 229(2)(j) of the Restatement (Second) of Agency

provides, in pertinent part, that “[i]n determining whether or not

the conduct, although not authorized, is nevertheless so similar

to or incidental to the conduct authorized as to be within the

scope of employment, the following matters of fact are to be

considered: . . . whether or not the act is seriously criminal.”7 In

alleging that the defendants formulated, approved and

implemented a policy of torture, the plaintiffs have plainly

alleged “seriously criminal” conduct. But criminal conduct is

not per se outside the scope of employment. See Restatement

(Second) of Agency § 231 (“An act may be within the scope of

employment although consciously criminal or tortious.”);

Johnson, 434 A.2d at 409 (laundromat employee shot customer

over laundry dispute); Lyon, 533 F.2d at 652 (deliveryman

assaulted and raped customer following delivery dispute);

Brown v. Argenbright Sec., Inc., 782 A.2d 752, 758 (D.C. 2001)

(rule that sexual assaults are automatically outside scope of

employment “too broad”).

Citing § 229(2)(j) of the Restatement, the plaintiffs argue

nonetheless that the serious criminality of the defendants’

alleged conduct precluded the district court from holding—as a

matter of law—that their conduct was within the scope of their

employment. Here, however, the district court apparently

7

Comment f to section 229(2) states that “[t]he fact that the act

done is a serious crime is a factor indicating that it is not in the scope

of employment.”

21

assumed the truth of the plaintiffs’ allegation that the

defendants’ conduct was seriously criminal. 414 F. Supp. 2d at

34 (concluding that “torture and inhumane treatment wrought

upon captives by their captors” was “‘direct outgrowth of the

employees’ instructions and job assignment’”) (quoting Haddon,

68 F.3d at 1424) (alteration omitted). Accordingly, regardless

whether the court or a jury resolves factual disputes in a

Westfall Act action,8 nothing would be gained by an evidentiary

8

Unlike the determination of scope of employment in a respondeat

superior case in the District of Columbia, where under local law the

issue is a jury question, see e.g., Johnson, 434 A.2d at 407-09; Lyon,

533 F.2d at 652, our precedent holds that the court determines whether

conduct falls within the scope of employment under the Westfall Act,

conducting an evidentiary hearing only if necessary to resolve factual

disputes. See Kimbro, 30 F.3d at 1509 (“If there is a material dispute

as to the scope [of employment] issue the district court must resolve

it at an evidentiary hearing.”); Stokes v. Cross, 327 F.3d 1210, 1214

(D.C. Cir. 2003) (same); cf. Jamison v. Wiley, 14 F.3d 222, 236 (4th

Cir. 1994) (“The federal courts of appeals have consistently

recognized that a district court has the power to hold a limited

evidentiary hearing to resolve factual disputes that bear on a

scope-of-employment issue properly before it in a Westfall Act

case.”). In a more recent case, we reversed the district court’s grant of

summary judgment based on its conclusion as a matter of law that the

defendant Smithsonian employee acted within the scope of her

employment under the Westfall Act. Majano v. United States, 469

F.3d 138 (D.C. Cir. 2006). In Majano, we remanded to the district

court in light of a factual dispute and included the comment that

“scope of employment questions are generally viewed as questions of

fact best resolved by a jury.” Id. at 140. At oral argument here, the

plaintiffs’ counsel maintained that the Majano comment makes the

scope of employment under the Westfall Act a jury question. See

Recording of 9/14/2007 Oral Argument at 7:45-8:32 (“Under Majano,

[scope of employment] would be a jury [question]. Under Kimbro v.

Velten, the initial suggestion was that it would be an evidentiary

hearing before a court after discovery. . . . Majano seemed to move

from Kimbro v. Velten and suggest that it was a jury issue.”). But the

22

hearing because the plaintiffs could, at most, simply re-establish

that the defendants’ conduct was seriously criminal. Where, as

here, there are no material facts in dispute, the court may decide

a Rule 12(b) motion as a matter of law. See, e.g., Ballenger, 444

F.3d at 663 (affirming district’s court dismissal of tort claim

based on determination that defendant acted within scope of

employment).

If conduct is seriously criminal, the Restatement explains

that it is generally less likely that the conduct comes within the

scope of employment:

The fact that the servant intends a crime, especially if the

crime is of some magnitude, is considered in

determining whether or not the act is within the

employment, since the master is not responsible for acts

which are clearly inappropriate to or unforeseeable in the

accomplishment of the authorized result. The master

can reasonably anticipate that servants may commit

minor crimes in the prosecution of the business, but

serious crimes are not only unexpectable but in general

are in nature different from what servants in a lawful

occupation are expected to do.

Restatement (Second) of Agency § 231 cmt. a.

While it may generally be unexpected that seriously criminal

conduct will arise “in the prosecution of the business,” here it

was foreseeable that conduct that would ordinarily be

Majano holding does not retreat from Kimbro, which case had earlier

made clear that the court is to decide any factual dispute in a Westfall

Act action. Kimbro, 30 F.3d at 1509. Both Kimbro and Majano

disposed of Westfall Act actions as a matter of law, Kimbro by

granting a motion to dismiss, Majano by granting summary judgment;

Kimbro expressly instructed the district court to resolve any factual

dispute while Majano simply noted the existence of a factual dispute

and remanded without mentioning Kimbro.

23

indisputably “seriously criminal” would be implemented by

military officials responsible for detaining and interrogating

suspected enemy combatants. As in Lyon, the tortious conduct

“was triggered . . . or motivated or occasioned by . . . the

conduct then and there of the employer’s business” even though

it was seriously criminal. Lyon, 533 F.2d at 655; see also

Johnson, 434 A.2d at 409 (laundromat employee acted within

scope of employment because “[the employee] had no previous

relations with [the victim] which would indicate that the tort was

personal” and “[n]o subject unrelated to the [laundry] was ever

made a part of the conversation between the men”). Therefore,

the allegations of serious criminality do not alter our conclusion

that the defendants’ conduct was incidental to authorized

conduct.9

Because the defendants’ alleged conduct came within the

scope of their office/employment, the three ATS claims were

properly “restyled as [claims] against the United States that [are]

governed by the [FTCA].” Ballenger, 444 F.3d at 662; see

Rasul, 414 F. Supp. 2d at 38-39. Although the district court did

not elaborate—and the parties similarly do not discuss it—we

must examine whether the restyled claims against the United

States were properly dismissed for lack of jurisdiction. The

district court stated only that “[b]ecause the plaintiffs in this

case did not proceed against the United States, they did not first

present their claim to the appropriate Federal agency” and

therefore “the plaintiffs have not exhausted their administrative

remedies.” 414 F. Supp. 2d at 39.

The FTCA provides that “[a]n action shall not be instituted

upon a claim against the United States for money damages . . .

unless the claimant shall have first presented the claim to the

9

While the plaintiffs do not rely on the other nine factors listed in

section 229, they do contend that the district court erroneously

determined the scope of employment without allowing discovery

thereto. See infra pp. 25-27.

24

appropriate Federal agency and his claim shall have been finally

denied by the agency in writing.” 28 U.S.C. § 2675(a). As

noted earlier, supra p. 12, we view the failure to exhaust

administrative remedies as jurisdictional. See Simpkins, 108

F.3d at 371. Accordingly, section 2675(a) required the plaintiffs

to file an administrative claim with either the Department of

Defense (DoD) or the appropriate military department before

bringing suit. See 28 C.F.R. § 14.1 (under FTCA, “terms

Federal agency and agency . . . include the executive

departments [and] the military departments”). Since their

release in 2004 at least, the plaintiffs have presumably been able

to comply with the exhaustion requirements of FTCA—indeed,

they do not argue otherwise. The record is devoid, however, of

any suggestion that they complied with any of the procedures

governing the filing of an administrative claim with DoD or one

of the military departments.10 Accordingly, the district court

10

See 28 C.F.R. § 14.2(a) (“[A] claim shall be deemed to have

been presented when a Federal agency receives from a claimant, his

duly authorized agent or legal representative, an executed Standard

Form 95 or other written notification of an incident, accompanied by

a claim for money damages in a sum certain for injury to or loss of

property, personal injury, or death alleged to have occurred by reason

of the incident; and the title or legal capacity of the person

signing . . . .”); 32 C.F.R. § 750.6(b) (claim against Department of the

Navy submitted to “Tort Claims Unit Norfolk,” “Office of the Judge

Advocate General,” “commanding officer of the Navy or Marine

Corps activity involved if known, the commanding officer of any

Navy or Marine activity, preferably the one nearest to where the

accident occurred, or the local Naval Legal Service Command

activity”); id. § 842.4 (claim against Department of the Air Force filed

“at the base legal office of the unit or installation at or nearest to

where the accident or incident occurred”); id. §§ 536.3, 536.25 (claim

against Department of the Army handled by “area claims office” or

“claims processing office”).

25

properly dismissed the three ATS claims for lack of subject

matter jurisdiction.11

2. Discovery

The plaintiffs assert that the district court erred by

dismissing their claims without allowing discovery on the scope

11

The detainees argue in the alternative that even if an employee’s

conduct is within the scope of his employment, the Westfall Act “does

not extend or apply to a civil action” brought (1) “for a violation of the

Constitution of the United States” or (2) “for a violation of a statute of

the United States under which such action against an individual is

otherwise authorized.” 28 U.S.C. § 2679(b)(2)(A)-(B). The plaintiffs

maintain that the first exception applies because they allege Eighth

and Fifth Amendment claims (Counts V-VI) in addition to their ATS

claims (Counts I-III) and that “civil action” refers to the entire action

rather than an individual claim. Yet, as the First Circuit has observed,

“[w]here a single case involves multiple claims, certification is

properly done at least down to the level of individual claims and not

for the entire case viewed as a whole.” Lyons v. Brown, 158 F.3d 605,

607 (1st Cir. 1998). This court—as have a number of other

circuits—has permitted the substitution of the United States if a claim

within the Westfall Act exception is joined with unexcepted claims.

See, e.g., Simpkins v. District of Columbia Gov’t, 108 F.3d 366, 368,

370-71 (D.C. Cir. 1997) (substituting United States for defendant on

common law tort claims notwithstanding defendant also charged with

constitutional claims); see also RMI Titanium Co. v. Westinghouse

Elec. Corp., 78 F.3d 1125, 1132, 1142-44 (6th Cir. 1996) (substituting

United States for defendant on common law tort claims

notwithstanding additional Sherman Act and Lanham Act claims);

Pelletier v. Fed. Home Loan Bank of S.F., 968 F.2d 865, 867 (9th Cir.

1992) (substituting United States for defendant on common law tort

claims notwithstanding additional Bivens claims); Duffy v. United

States, 966 F.2d 307, 309, 314 (7th Cir. 1992) (substituting United

States for defendant on common law tort claims notwithstanding

additional Bivens and 42 U.S.C. § 1985 claims). Accordingly, the

plaintiffs’ claims do not fall within the first exception to the Westfall

Act and they do not rely on the second exception thereto.

26

of employment question. But discovery is not warranted if “the

plaintiff ‘did not allege any facts in his complaint or in any

subsequent filing . . . that, if true, would demonstrate that [the

defendant] had been acting outside the scope of his

employment.’” Stokes v. Cross, 327 F.3d 1210, 1216 (D.C. Cir.

2003) (alteration in Stokes) (quoting Singleton v. United States,

277 F.3d 864, 871 (6th Cir. 2002)). For example, in Stokes, a

federal employee (Stokes) sued coworkers for defamation

arising from their statements that Stokes had failed to perform

his duties as a law enforcement officer of the United States

Government Printing Office. Id. at 1212. Stokes alleged that

coworkers “destroy[ed] critical evidence, prepar[ed] and

submit[ted] false affidavits by use of threat and coercion, and

engag[ed] in other criminal acts.” Id. at 1216. While noting that

“[i]t is unclear whether evidence of such conduct alone would

be sufficient under District of Columbia law,” we recognized

that evidence of such conduct might reveal the coworkers’

“intent to prevent the best candidate, namely Stokes, from

getting [a] promotion . . . [and] indicate that they had

maliciously acted contrary to their employer’s interest and,

therefore, outside the scope of their employment.” Id.

Accordingly, we decided that Stokes was entitled to “at least

limited discovery on the scope-of-employment issue.” Id. In

contrast, even if the detainees were to establish that the

defendants authorized, implemented, supervised and condoned

torture and detention based on evidence obtained through

discovery, the defendants’ conduct would nonetheless fall within

the scope of their employment because the defendants were

employed to detain and interrogate suspected enemy combatants

and the plaintiffs concede that the alleged torture and detention

were “intended as interrogation techniques to be used on

detainees.” Compl. ¶ 141. The plaintiffs thus failed to allege

any facts that, if proven, would establish that the defendants

were acting outside the scope of their employment and the

district court did not abuse its discretion in denying the plaintiffs

27

discovery. Islamic Am. Relief Agency v. Gonzales, 477 F.3d

728, 737 (D.C. Cir. 2007) (“‘The district court has broad

discretion in its handling of discovery, and its decision to allow

or deny discovery is reviewable only for abuse of discretion.’”

(quoting Brune v. IRS, 861 F.2d 1284, 1288 (D.C. Cir. 1988))).

B. The Geneva Conventions Claim

Similar to Counts I-III, Count IV of the plaintiffs’ complaint

alleges that they were “held arbitrarily, tortured and otherwise

mistreated during their detention” in violation of the Geneva

Conventions.12 Compl. ¶ 181. As already noted, the Westfall

Act provides that “‘[t]he remedy against the Government under

the FTCA ‘is exclusive of any other civil action or proceeding

for money damages . . . against the employee’ and then

reemphasizes that ‘[a]ny other civil action or proceeding for

money damages . . . against the employee . . . is precluded.’”

United States v. Smith, 499 U.S. 160, 165-66 (1991) (quoting 28

U.S.C. § 2679(b)(1)). The plaintiffs’ claim based on the Geneva

Conventions is for money damages and the alleged conduct falls

within the defendant’s scope of employment for the reasons

discussed supra pp. 16-23. Similarly, the plaintiffs’ argument

that the first exception to the Westfall Act applies because they

alleged Eighth and Fifth Amendment claims (Counts V-VI) in

addition to their Geneva Conventions claim is rejected for the

reasons discussed supra note 11. The Geneva Conventions

claim is therefore precluded by the Westfall Act and the district

court properly dismissed the claim for failure to exhaust

administrative remedies. See Simpkins, 108 F.3d at 371.

12

Neither the plaintiffs’ complaint nor their briefs identify those

portions of the Geneva Convention Relative to the Protection of

Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135, or

the Geneva Convention Relative to the Protection of Civilian Persons

in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287, the

defendants allegedly violated.

28

C. The Bivens Claims

The plaintiffs assert two Bivens claims for violations of their

Fifth and Eighth Amendment rights. They allege that the

defendants’ challenged conduct constituted cruel and unusual

punishment in violation of the Eighth Amendment. Compl.

¶ 186. Additionally, they claim that the “cruel, inhuman or

degrading” conditions at Guantanamo violated their substantive

due process rights and their “arbitrary and baseless detention”

violated their procedural due process rights, both in violation of

the Fifth Amendment. Compl. ¶¶ 194-95. The defendants first

respond that the detainees, as aliens located outside sovereign

United States territory at the time of the alleged violations, had

no rights protected by the Constitution. Even assuming the

plaintiffs were protected by the Constitution, the defendants

submit that any rights they possessed thereunder were not

clearly established at the time of the alleged violations and the

defendants are therefore entitled to qualified immunity from suit

pursuant to Harlow v. Fitzgerald, 457 U.S. 800 (1982), Mitchell

v. Forsyth, 472 U.S. 511 (1985), and their progeny.

We recently held that Guantanamo detainees lack

constitutional rights because they are aliens without property or

presence in the United States, Boumediene v. Bush, 476 F.3d

981, 984 (D.C. Cir. 2007), cert. granted, 127 S. Ct. 3078 (2007).

Boumediene involved a Suspension Clause13 challenge to the

Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005,

119 Stat. 2680, 2740-44 (2005) (DTA) (amending 28 U.S.C.

§ 2241), and the Military Commissions Act of 2006, Pub. L. No.

109-366, § 7, 120 Stat. 2600, 2635-36 (2006) (MCA) (amending

28 U.S.C. § 2241). The DTA was enacted in response to the

Supreme Court’s decision in Rasul v. Bush, 542 U.S. 466, 483-

84 (2004), see Boumediene, 476 F.3d at 985, which held that

13

“The Privilege of the Writ of Habeas Corpus shall not be

suspended, unless when in Cases of Rebellion or Invasion the public

Safety may require it.” U.S. Const. art. I, § 9, cl. 2.

29

federal courts have subject matter jurisdiction over petitions

filed by Guantanamo detainees seeking a writ of habeas corpus

pursuant to 28 U.S.C. § 2241. The DTA stripped federal courts

of subject matter jurisdiction over detainees’ habeas petitions

except as provided therein. DTA § 1005(e), 119 Stat. at 2742

(“Except as provided in section 1005 [creating Combatant Status

Review Tribunal], no court, justice, or judge shall have

jurisdiction to hear or consider . . . (1) an application for a writ

of habeas corpus filed by or on behalf of an alien detained by the

Department of Defense at Guantanamo Bay, Cuba; or (2) any

other action against the United States or its agents relating to

any aspect of the detention by the Department of Defense of an

alien at Guantanamo Bay, Cuba . . . .”). The next year, the

Supreme Court held that the DTA did not apply to habeas

petitions pending at the time the DTA was enacted. Hamdan v.

Rumsfeld, 126 S. Ct. 2749, 2769 n.15 (2006) (“[W]e conclude

that [the DTA] does not strip federal courts’ jurisdiction over

[habeas] cases pending on the date of the DTA’s enactment.”).

In response to Hamdan, the Congress passed the MCA, making

the DTA retroactive. MCA § 7(b), 120 Stat. at 2636 (“The

amendment [ousting the courts of subject matter jurisdiction

over detainees’ habeas petitions] shall take effect on the date of

the enactment of this Act, and shall apply to all cases, without

exception, pending on or after the date of the enactment of this

Act which relate to any aspect of the detention, transfer,

treatment, trial, or conditions of detention of an alien detained

by the United States since September 11, 2001.” (emphasis

added)).

We held in Boumediene that neither the DTA nor the MCA

violates the Suspension Clause based in part on our

determination that “[p]recedent in this court and the Supreme

Court holds that the Constitution does not confer rights on aliens

without property or presence within the United States.” 476

F.3d at 991. First, we explained that the “controlling case” was

Johnson v. Eisentrager, 339 U.S. 763 (1950), which involved

30

German nationals convicted of war crimes who were held at a

United States army base in Germany and who filed habeas

petitions to challenge their convictions and imprisonment. The

Supreme Court rejected the proposition “that the Fifth

Amendment confers rights upon all persons, whatever their

nationality, wherever they are located and whatever their

offenses,” holding that the German nationals had no

constitutional right to petition for habeas corpus relief under the

Fifth Amendment. Id. at 783. We concluded in Boumediene

that any difference between Guantanamo and the United States

army prison in Germany was “immaterial” because “[t]he text

of the lease and decisions of circuit courts and the Supreme

Court all make clear that Cuba—not the United States—has

sovereignty over Guantanamo Bay.” Boumediene, 476 F.3d at

992. We noted that the Supreme Court decision following

Eisentrager held that the Fourth Amendment did not protect a

nonresident alien from a DEA agent’s allegedly unreasonable

search and seizure carried out in Mexico. Id. at 991 (citing

United States v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990)).

We observed that the Supreme Court “found it ‘well established

that certain constitutional protections available to persons inside

the United States are unavailable to aliens outside our

geographic borders.’” Id. at 991-92 (quoting Zadvydas v. Davis,

533 U.S. 678, 693 (2001)). We rejected the detainees’ reliance

on the Insular Cases,14 distinguishing those cases on the ground

that the Congress had exercised its power to regulate those

territories, whereas “[h]ere Congress and the President have

specifically disclaimed the sort of territorial jurisdiction they

14

In the Insular Cases, the Supreme Court extended “fundamental

personal rights” to United States territories. See Balzac v. Porto [sic]

Rico, 258 U.S. 298, 312-13 (1922); Dorr v. United States, 195 U.S.

138, 148 (1904). As noted in Boumediene, “in each of those cases,

Congress had exercised its power under Article IV, Section 3 of the

Constitution to regulate ‘Territory or other Property belonging to the

United States,’ U.S. Const., art. IV, § 3, cl. 2.” 476 F.3d at 992.

31

asserted in Puerto Rico, the Philippines, and Guam.” Id. at 992.

Finally, we explained that “[p]recedent in this circuit also

forecloses the detainees’ claims to constitutional rights,” noting

that we had previously held that “‘non-resident aliens . . . plainly

cannot appeal to the protection of the Constitution or laws of the

United States’” and that a “‘foreign entity without property or

presence in this country has no constitutional rights, under the

due process clause or otherwise.’” Id. (quoting Pauling v.

McElroy, 278 F.2d 252, 254 n.3 (D.C. Cir. 1960); People’s

Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 22

(D.C. Cir. 1999)).

The plaintiffs nonetheless assert that Boumediene conflicts

with the Supreme Court’s holding in Rasul. Rasul reversed our

decision in Al Odah v. United States, 321 F.3d 1134 (D.C. Cir.

2003), in which we had held that the federal court’s habeas

jurisdiction did not extend to aliens detained by United States

military forces outside the United States. 321 F.3d at 1144.

Although the holding was limited to the jurisdictional question,

the Al Odah opinion included a discussion of whether basic

constitutional protections were available to aliens abroad.

Relying on Eisentrager, inter alia, we concluded that detainees

were not entitled to due process, id. at 1141, and accordingly,

“[w]e cannot see why, or how, the writ may be made available

to aliens abroad when basic constitutional protections are not.”

Id. But in Rasul, the Supreme Court, significantly, did not reach

the issue of whether Guantanamo detainees possess

constitutional rights and instead based its holding on 28 U.S.C.

§ 2241 only. Rasul, 542 U.S. at 478-84. For example, the Court

explained that “persons detained outside the territorial

jurisdiction of any federal district court no longer need rely on

the Constitution as the source of their right to federal habeas

review.” Id. at 478. It emphasized that “[w]hat is presently at

stake is only whether the federal courts have jurisdiction to

determine the legality of the Executive’s potentially indefinite

detention of individuals who claim to be wholly innocent of

32

wrongdoing.” Id. at 485. Thus, Boumediene does not conflict

with Rasul and remains the law of this Circuit.15

Even assuming arguendo the detainees can assert their Fifth

and Eighth Amendment claims, those claims are nonetheless

subject to the defendants’ assertion of qualified immunity. In

determining whether qualified immunity applies, as we earlier

noted,16 the court must first determine whether “[t]aken in the

light most favorable to the party asserting the injury . . . the facts

alleged show the officer’s conduct violated a constitutional

right.” Saucier, 533 U.S. at 201. “[I]f a violation could be made

out on a favorable view of the parties’ submissions, the next,

sequential step is to ask whether the right was clearly

established.” Id. at 201. “A constitutional right was ‘clearly

established’ at the time of the events in question only if ‘[t]he

contours of the right [were] sufficiently clear that a reasonable

officer would understand that what he [was] doing violate[d]

that right.’” Butera v. District of Columbia, 235 F.3d 637, 646

(D.C. Cir. 2001) (quoting Anderson v. Creighton, 483 U.S. 635,

640 (1987) (alterations in Butera)).17

The plaintiffs argue that a reasonable person would have

been on notice that the defendants’ alleged conduct was

15

Boumediene is currently before the Supreme Court on certiorari

review. Nevertheless, we must follow Circuit precedent until and

unless it is altered by our own en banc review or by the High Court.

See United States v. Carson, 455 F.3d 336, 384 n.43 (D.C. Cir. 2006)

(“[W]e are, of course, bound to follow circuit precedent absent

contrary authority from an en banc court or the Supreme Court.”

(citing Brewster v. Comm’r, 607 F.2d 1369, 1373 (D.C. Cir. 1979))).

16

See supra note 3.

17

Because Boumediene was then pending in our Court, the district

court assumed the first step of the Saucier inquiry and proceeded to

analyze “whether the plaintiffs’ alleged constitutional rights were

clearly established at the time of the alleged abuse.” 414 F. Supp. 2d

at 41.

33

unconstitutional because the “prohibition on torture is

universally accepted.” Appellants’ Br. 38. The issue we must

decide, however, is whether the rights the plaintiffs press under

the Fifth and Eighth Amendments were clearly established at the

time of the alleged violations.

An examination of the law at the time the plaintiffs were

detained reveals that even before Boumediene, courts did not

bestow constitutional rights on aliens located outside sovereign

United States territory. Supreme Court and Circuit precedent,

consistent with Eisentrager’s rejection of the proposition “that

the Fifth Amendment confers rights upon all persons, whatever

their nationality, wherever they are located and whatever their

offenses,” concluded that non-resident aliens enjoy no

constitutional rights. Eisentrager, 339 U.S. at 783; see, e.g.,

Verdugo-Urquidez, 494 U.S. at 269 (Fourth Amendment did not

apply to the search and seizure of an alien’s Mexican residence);

Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir. 2004), cert. denied,

543 U.S. 1146 (2005) (“The Supreme Court has long held that

non-resident aliens who have insufficient contacts with the

United States are not entitled to Fifth Amendment

protections.”); People’s Mojahedin Org. of Iran. v. U.S. Dep’t

of State, 182 F.3d 17, 22 (D.C. Cir. 1999) (“A foreign entity

without property or presence in this country has no

constitutional rights, under the due process clause or

otherwise.”); Cuban Am. Bar Ass’n v. Christopher, 43 F.3d

1412, 1428 (11th Cir. 1995) (Cuban and Haitian refugees at

Guantanamo Bay lacked First and Fifth Amendment rights). In

light of this precedent, we agree with the district court that “[t]he

plaintiffs have provided no case law, and the court finds none,

supporting a conclusion that military officials would have been

aware, in light of the state of the law at the time, that detainees

should be afforded the rights they now claim.” 414 F. Supp. 2d

at 44.

34

Finally, the plaintiffs contend that they were not non-

resident aliens while they were at Guantanamo because the law

recognized Guantanamo as sovereign United States territory at

the time of the alleged violations. They are mistaken. The

United States entered into an indefinite lease with Cuba in 1903

for the Guantanamo Bay Naval Base. Lease of Lands for

Coaling and Naval Stations, Feb. 23, 1903, U.S.-Cuba, T.S. No.

418, Art. III. The lease provides that “the United States

recognizes the continuance of the ultimate sovereignty of the

Republic of Cuba” and “the Republic of Cuba consents that

during the period of the occupation by the United States . . . the

United States shall exercise complete jurisdiction and control

over and within said areas.” Id. (emphasis added). Precedent

regarding other leased military bases also supported the

conclusion that Guantanamo is not a United States territory. For

example, in Vermilya-Brown Co. v. Connell, 335 U.S. 377, 390

(1948), the Supreme Court stated that a leased military base in

Bermuda was “beyond the limits of national sovereignty.”

Similarly, in Eisentrager, the Court held that a United States

military prison in Germany was outside the sovereign territory

of the United States. 339 U.S. at 778. Based on the plain text

of the lease and on case law, 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.18 Accordingly, we affirm the district

18

Since the plaintiffs’ release, we have held that Guantanamo is

not sovereign United States territory. Boumediene, 476 F.3d at 992

(“The text of the lease and decisions of circuit courts and the Supreme

Court all make clear that Cuba—not the United States–has sovereignty

over Guantanamo Bay.”); see also Rasul v. Bush, 542 U.S. 466, 475

(2004) (characterizing Guantanamo Bay as a “territory over which the

United States exercises plenary and exclusive jurisdiction, but not

‘ultimate sovereignty’”); Detainee Treatment Act of 2005, Pub. L. No.

109-148, § 1005, 119 Stat. 2680, 2740-44 (2005) (provision detailing

status review procedure for detainees entitled “Procedures for Status

Review of Detainees Outside the United States”) (emphasis added).

35

court’s dismissal of the plaintiffs’ two constitutional claims.

D. The RFRA Claim

The plaintiffs’ final claim alleges that the defendants

“inhibited and constrained religiously motivated conduct central

to Plaintiffs’ religious beliefs,” “imposed a substantial burden on

Plaintiffs’ abilities to exercise or express their religious beliefs”

and “regularly and systematically engaged in practices

specifically aimed at disrupting Plaintiffs’ religious practices”

in violation of the Religious Freedom Restoration Act, 42

U.S.C. §§ 2000bb et seq. Compl. ¶¶ 204-208. RFRA provides

that the “Government shall not substantially burden a person’s

exercise of religion” unless it can demonstrate that “application

of the burden to the person—(1) is in furtherance of a

compelling governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental interest.” 42

U.S.C. § 2000bb-1(a)-(b). As noted, the district court

determined that RFRA applied to Government action at

Guantanamo, rejecting the defendants’ assertion that RFRA does

not apply to non-resident aliens.19 433 F. Supp. 2d at 59, 67. It

But see Rasul, 542 U.S. at 487 (Kennedy, J., concurring in the

judgment) (“Guantanamo Bay is in every practical respect a United

States territory . . . .”). As noted, Boumediene is currently before the

Supreme Court on certiorari review.

19

The district court found it necessary to conclude that

Guantanamo is a “territory and possession of the United States” in

order to allow the plaintiffs’ RFRA claim to proceed. Rasul, 433

F. Supp. 2d at 62-66. Guantanamo’s status, however, is not

determinative of RFRA’s applicability. Section 2000bb-2(1) defines

“government” as “a branch, department, agency, instrumentality, and

official (or other person acting under color of law) of the United

States, or of a covered entity.” Whether or not “covered entity,”

which includes “each territory and possession of the United States,”

§ 2000bb-2(2), applies to Guantanamo, the defendants are “official[s]

of the United States” and therefore RFRA applies to their actions.

36

observed that “RFRA expressly protects the religious exercise

of ‘persons,’ a broadly applicable term, commonly including

aliens,” id. at 66, and reasoned that “because RFRA explicitly

applies to ‘persons,’ the defendants, at a bare minimum, must

demonstrate that Congress specifically intended to vest the term

‘persons’ with a definition . . . at odds with its plain meaning,”

id. at 67. It concluded that the defendants had not done so and

therefore denied their motion to dismiss the RFRA claim.20 Id.

A distinct issue is whether RFRA applies extraterritorially

regardless whether the defendants satisfy § 2000bb-2’s definition of

“government.” While there is a presumption against the

extraterritorial application of a statute absent a “clear statement” to the

contrary, see EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 258 (1991)

(superseded by Civil Rights Act of 1991, Pub. L. No. 102-166, § 105,

105 Stat. 1071), the legislative history indicates that RFRA may have

extraterritorial scope. See 146 Cong. Rec. S7991 (Sept. 5, 2000)

(statement of Sen. Thurmond). We do not reach this question because

we conclude that the plaintiffs are not “person[s]” within the meaning

of RFRA.

20

The district court rejected the defendants’ qualified immunity

from the RFRA claim, concluding that the plaintiffs’ allegations made

out a claim under RFRA, 433 F. Supp. 2d at 68, and that the plaintiffs’

rights under RFRA were clearly established at the time of the alleged

violations, id. at 71. Both the Supreme Court and our court have

recognized qualified immunity is available to counter not only

constitutional claims but also certain statutory claims. See Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982) (“We therefore hold that

government officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does

not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.”) (emphasis added);

Berry v. Funk, 146 F.3d 1003, 1014 (D.C. Cir. 1998) (“[W]e [have]

held that . . . the doctrine of qualified immunity applied to plaintiff’s

statutory claims [under the Federal Wiretap Act] in the same manner

as it applied to plaintiff’s constitutional claims.”); Tapley v. Collin,

211 F.3d 1210, 1214-15 n.9 (11th Cir. 2000) (explaining that qualified

immunity is available against statutory claim unless “Congress

37

We must first determine whether the district court correctly

treated the plaintiffs as “person[s]” under RFRA. Although we

ordinarily “first look to the language of the law itself to

determine its meaning,” United Mine Workers v. Fed. Mine

Safety & Health Rev. Comm’n, 671 F.2d 615, 621 (D.C. Cir.

1982), cert. denied, 459 U.S. 927 (1982), RFRA’s text does not

define “person.” While the defendants do not dispute that

“person” is a broad term that has been interpreted as including

aliens, they point out that, under various constitutional

provisions, “person” does not include a non-resident alien. See,

e.g., Verdugo-Urquidez, 494 U.S. at 265 (holding that “people”

as used in the Fourth Amendment “refers to a class of persons

who are part of a national community or who have otherwise

developed sufficient connection with this country to be

considered part of that community” and thus excludes alien

located in Mexico); Jifry v. FAA, 370 F.3d 1174, 1182 (D.C. Cir.

2004), cert. denied, 543 U.S. 1146 (2005) (“person” under Fifth

Amendment does not include “non-resident aliens who have

insufficient contacts with the United States”); People’s

Mojahedin Org., 182 F.3d at 22 (“person” under Fifth

Amendment does not apply to “foreign entity without property

or presence in this country”).

Because RFRA prohibits the Government from “substantially

burden[ing] a person’s exercise of religion” instead of simply the

exercise of religion, 42 U.S.C. § 2000bb-1(a) (emphasis added),

we must construe “person” as qualifying “exercise of religion.”

The original version of RFRA had defined “exercise of religion”

as “the exercise of religion under the First Amendment to the

Constitution.” 42 U.S.C. § 2000bb-2(4) (1994). Indeed, the

stated purpose of RFRA was “to restore the compelling interest

intended to abrogate the defense of qualified immunity to claims under

that act” and listing statutes under which qualified immunity is

available as defense). We do not reach the issue of the availability of

qualified immunity from a RFRA claim.

38

test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and

Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its

application in all cases where free exercise of religion is

substantially burdened.” 42 U.S.C. § 2000bb(b)(1). In both

Sherbert and Yoder, the Supreme Court had held that the

Government must demonstrate a compelling interest to justify a

substantial burden on religious exercise. Sherbert, 374 U.S. at

406-07 (holding that South Carolina had to demonstrate

compelling state interest to justify unemployment compensation

statute that denied benefits unless claimant worked on Saturday

in contravention of her religious beliefs); Yoder, 406 U.S. at 215,

220-21 (holding that Wisconsin had to demonstrate compelling

state interest to justify education statute requiring Amish

children to attend formal high school in contravention of their

religious beliefs). In Employment Division, Department of

Human Resources of Oregon v. Smith, 494 U.S. 872 (1990),

however, the Court subsequently held that a generally applicable

law may abridge religious exercise regardless whether the

Government demonstrates a compelling interest therefor. See id.

at 884-85 (“Even if we were inclined to breathe into [Sherbert’s

compelling interest test] some life beyond the unemployment

compensation field, we would not apply it to require exemptions

from a generally applicable criminal law. . . . To make an

individual’s obligation to obey such a law contingent upon the

law’s coincidence with his religious beliefs, except where the

State’s interest is compelling—permitting him, by virtue of his

beliefs, to become a law unto himself—contradicts both

constitutional tradition and common sense.” (internal quotation

and citation omitted)). RFRA was then enacted to restore the

pre-Smith compelling interest test.21 Accordingly, RFRA as

21

The Congress declared that “in Employment Division v. Smith,

494 U.S. 872 (1990) the Supreme Court virtually eliminated the

requirement that the government justify burdens on religious exercise

imposed by laws neutral toward religion,” 42 U.S.C. § 2000bb(a)(4);

by enacting RFRA it thus intended to “restore the compelling interest

39

originally enacted did not expand the scope of the exercise of

religion beyond that encompassed by the First Amendment.22

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court

held that RFRA could not be made applicable to the states under

section five of the Fourteenth Amendment. Therefore, the Court

determined that RFRA did not preclude municipal authorities

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).

22

The plaintiffs and one group of Amici contend that RFRA was

also enacted to extend the First Amendment Rights of prisoners and

members of the military. Amicus Curiae The Baptist Joint Committee

for Religious Liberty et al. (Amici) Br. 8-11. Before RFRA a

prisoner’s free exercise claim was reviewed under the rational basis

standard, see O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987)

(upholding prison policy not to excuse inmate from work to attend

worship service on rational basis review), and the military was exempt

from some of the restrictions of the free exercise clause. See Goldman

v. Weinberger, 475 U.S. 503, 507 (1986) (superseded by 10 U.S.C.

§ 774) (sustaining military’s dress regulations that forbade wearing of

yarmulke because review of military regulations “is far more

deferential” than compelling interest test used for review of “similar

laws or regulations designed for civilian society”). Amici contend that

RFRA changed the standard of review for the free exercise claims of

prisoners and military service members to the compelling interest

standard. Amici Br. 8-10 (citing H.R. Rep. No. 103-88 (1993)

(“Pursuant to the Religious Freedom Restoration Act, the courts must

review claims of prisoners and military personnel under the

compelling governmental interest test.”); S. Rep. No. 103-111 (1993)

(“The intent of the Act is to restore traditional protection afforded to

prisoner’s claims prior to O’Lone.”); S. Rep. No. 103-111 (1993)

(“Under the unitary standard set forth in the act, courts will review the

free exercise claims of military personnel under the compelling

governmental interest test.”)). Assuming arguendo the plaintiffs and

the amici are correct—an issue we need not reach—the inclusion of

prisoners and members of the military within RFRA’s protection does

not affect our resolution of the plaintiffs’ RFRA claim.

40

from enacting an ordinance governing historic preservation that

prevented a Catholic church from expanding. Id. at 511. In

response, in 2000 the Congress amended RFRA through the

Religious Land Use and Institutionalized Persons Act of 2000,

Pub. L. 106-274, 114 Stat. 803 (2000) (RLUIPA) (codified at 42

U.S.C. §§ 2000cc et seq.). RLUIPA provided that “[n]o

government shall impose or implement a land use regulation in

a manner that imposes a substantial burden on the religious

exercise of a person, including a religious assembly or

institution” unless the government demonstrates a compelling

interest therefor. 42 U.S.C. § 2000cc(a)(1).

RLUIPA also amended RFRA by altering the definition of

“exercise of religion” to include “any exercise of religion,

whether or not compelled by, or central to, a system of religious

belief.” 42 U.S.C. § 2000cc-5 (incorporated by reference by 42

U.S.C. § 2000bb-2(4)). Rather than expanding the scope of

protected religious exercise under RFRA, however, the change

in the definition of “exercise of religion” merely affirmed that

the Congress did not intend RFRA to overrule Smith in its

entirety. Before Smith, the Supreme Court had held that the

“free exercise inquiry asks whether government has placed a

substantial burden on the observation of a central religious belief

or practice.” Hernandez v. Comm’r, 490 U.S. 680, 699 (1989)

(emphasis added); see also Yoder, 406 U.S. at 234 (noting

Court’s “consistent emphasis on the central values underlying

Religion Clauses”) (emphasis added). The Court similarly

considered whether conduct was “mandated by religious belief”

in deciding whether the Government had unconstitutionally

burdened a plaintiff’s free expression. Hobbie v. Unemployment

Appeals Comm’n of Fla., 480 U.S. 136, 141 (1987) (quoting

Thomas v. Rev. Bd. of Ind. Employment Sec. Div., 450 U.S. 707,

718 (1981) (emphasis in original)).

In Smith, the Court also rejected applying the compelling

interest standard “only when the conduct prohibited is ‘central’

41

to the individual’s religion,” declaring that “[i]t is no more

appropriate for judges to determine the ‘centrality’ of religious

beliefs before applying a ‘compelling interest’ test in the free

exercise field, than it would be for them to determine the

‘importance’ of ideas before applying the ‘compelling interest’

test in the free speech field . . . . As we reaffirmed only last

Term, ‘[i]t is not within the judicial ken to question the centrality

of particular beliefs or practices to a faith, or the validity of

particular litigants’ interpretations of those creeds.’” 494 U.S. at

886-87 (alteration in Smith) (quoting Hernandez, 490 U.S. at

699). When the Congress enacted RFRA to overrule Smith,

some courts interpreted RFRA as having restored not only the

compelling interest standard but also the centrality limitation.

See, e.g., Mack v. O’Leary, 80 F.3d 1175, 1178-79 (7th Cir.

1996) (collecting cases). RLUIPA’s definition of “exercise of

religion” as “any exercise of religion, whether or not compelled

by, or central to, a system of religious belief” made clear that

centrality was not required. RFRA, then, both as originally

enacted and as amended by RLUIPA in 2000, was not intended

to expand the scope of free exercise of religion beyond that

protected by the First Amendment pre-Smith.

Because RFRA’s purpose was thus to restore what, in the

Congress’s view, is the free exercise of religion guaranteed by

the Constitution, “person” as used in RFRA should be interpreted

as it is in constitutional provisions. Cf. Wachovia Bank v.

Schmidt, 546 U.S. 303, 315-316 (2006) (“[U]nder the in pari

materia canon of statutory construction, statutes addressing the

same subject matter generally should be read ‘as if they were one

law.’” (quoting Erlenbaugh v. United States, 409 U.S. 239, 243

(1972))); United States v. Ursery, 518 U.S. 267, 304-05 (1996)

(“[T]he Double Jeopardy Clause is part of the same Amendment

as the Self-Incrimination Clause, and ought to be interpreted in

pari materia.”). Construing “person” as used in the Fifth

42

Amendment,23 the Supreme Court held almost sixty years ago

that German nationals who were convicted of war crimes and

held at a U.S. army base in Germany were not “persons” under

the Fifth Amendment and rejected the notion “that the Fifth

Amendment confers rights upon all persons, whatever their

nationality, wherever they are located and whatever their

offenses.” Johnson v. Eisentrager, 339 U.S. at 783.24 More

recently, the Supreme Court held that “people” as used in the

Fourth Amendment25 does not include non-resident aliens. In

United States v. Verdugo-Urquidez, the Court held that the

Fourth Amendment did not apply to the DEA’s search and

seizure of an alien’s Mexican residence. 494 U.S. 259, 269

(1990). Citing Eisentrager’s “rejection of extraterritorial

application of the Fifth Amendment,” the Court explained that

“[i]f such is true of the Fifth Amendment, which speaks in the

relatively universal term of ‘person,’ it would seem even more

true with respect to the Fourth Amendment, which applies only

to ‘the people.’” Id; see also Boumediene, 476 F.3d at 991-92

23

“No person shall . . . be deprived of life, liberty, or property,

without due process of law . . . .” U.S. Const. amend. V.

24

The Supreme Court reversed this Court’s opinion in Eisentrager

v. Forrestal, 174 F.2d 961 (D.C. Cir. 1949), which had given an

expansive interpretation to “person.” See id. at 963. Our concurring

colleague believes that “nowhere [in Eisentrager] did the Court rely

on the definition of ‘person.’” Concurrence at 6. But the Supreme

Court rejected a broad definition of “person” in no uncertain terms.

See Eisentrager, 339 U.S. at 783; see also id. (“American citizens

conscripted into the military service are . . . stripped of their Fifth

Amendment rights . . . . Can there be any doubt that our foes would

also have been excepted, but for the assumption ‘any person’ would

never be read to include those in arms against us?”).

25

“The right of the people to be secure in their persons, houses,

papers, and effects, against unreasonable searches and seizures, shall

not be violated . . . .” U.S. Const. amend. IV.

43

(finding it “‘well established that certain constitutional

protections available to persons inside the United States are

unavailable to aliens outside our geographic borders.’” (quoting

Zadvydas v. Davis, 533 U.S. 678, 693 (2001)).

We believe that RFRA’s use of “person” should be

interpreted consistently with the Supreme Court’s interpretation

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 outside sovereign United

States territory at the time their alleged RFRA claim arose,26 they

do not fall with the definition of “person.” Accordingly, the

district court erred in denying the defendants’ motion to dismiss

the plaintiffs’ RFRA claim.

For the foregoing reasons, we affirm the district’s court’s

dismissal of counts I, II, III, IV, V and VI of the plaintiffs’

complaint and reverse the district court’s denial of the

defendants’ motion to dismiss count VII thereof.

So ordered.

26

See supra note 18.

BROWN, Circuit Judge, concurring: I join Parts I, II–A and

II–B of the opinion. I write separately because I believe special

factors foreclose plaintiffs from bringing a Bivens action and

because I disagree that the term “person” limits the scope of the

Religious Freedom Restoration Act (“RFRA”).

I

Under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), a federal court can

only fashion a damages action for constitutional violations

where no “special factors counsel[ ] hesitation” in doing so.

Chappell v. Wallace, 462 U.S. 296, 298 (1983) (quoting Bivens,

403 U.S. at 396). Those factors do not relate to “the merits of

the particular remedy” being sought, but involve “the question

of who should decide whether such a remedy should be

provided.” Bush v. Lucas, 462 U.S. 367, 380 (1983). In cases

where these special factors exist, we do not reach the underlying

merits of plaintiffs’ claims because we simply decline to usurp

Congress’s authority to create damages actions. See Wilkie v.

Robbins, 127 S. Ct. 2588, 2608 (2007) (because Bivens does not

give plaintiff a cause of action, “there is no reason to enquire

further into the merits of [plaintiff’s] claim or the asserted

defense of qualified immunity”); Lucas, 462 U.S. at 390;

Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir.

1985) (because special factors foreclose a Bivens action, “[w]e

do not reach the question whether the protections of the

Constitution extend to noncitizens abroad”). Unfortunately, the

majority ignores this important separation-of-powers principle

and focuses entirely on whether plaintiffs’ constitutional claims

are meritorious. See maj. op. 28–35.1

1

Nothing in the majority’s opinion forecloses the special factors

argument. If the Supreme Court limits or overturns this court’s

constitutional holding in Boumediene v. Bush, 476 F.3d 981 (D.C. Cir.

2007), cert. granted, 127 S. Ct. 3078 (2007), future defendants should

not hesitate to raise this argument.

2

While the Supreme Court has created Bivens remedies

for traditional Fifth and Eighth Amendment claims, it has

“consistently refused to extend Bivens liability to any new

context or new category of defendants.” See Corr. Servs. Corp.

v. Malesko, 534 U.S. 61, 68–69 (2001) (emphasis added). For

example, in United States v. Stanley, 483 U.S. 669 (1987), the

Court held that a former serviceman could not bring a Fifth

Amendment claim against unknown federal officers for secretly

giving him LSD. In reaching this conclusion, it explained that

Congress’s failure to provide adequate alternative remedies is

“irrelevant” where “congressionally uninvited intrusion into

military affairs by the judiciary is inappropriate.” Id. at 683.

Applying the special factors inquiry to this case is

particularly straightforward because of this court’s decision in

Sanchez-Espinoza. In that case, we refused to create a Bivens

action for Nicaraguans who brought claims against U.S.

government officials for supporting the Contras. As then-Judge

Scalia explained:

[T]he special needs of foreign affairs must stay our hand in

the creation of damage remedies against military and

foreign policy officials for allegedly unconstitutional

treatment of foreign subjects causing injury abroad. The

foreign affairs implications of suits such as this cannot be

ignored—their ability to produce what the Supreme Court

has called in another context “embarrassment of our

government abroad” through “multifarious pronouncements

by various departments on one question.” Baker v. Carr,

369 U.S. 186, 226 (1962). Whether or not the present

litigation is motivated by considerations of geopolitics

rather than personal harm, we think that as a general matter

the danger of foreign citizens’ using the courts in situations

such as this to obstruct the foreign policy of our government

3

is sufficiently acute that we must leave to Congress the

judgment whether a damage remedy should exist.

770 F.2d at 209 (emphasis added). The present case involves

the method of detaining and interrogating alleged enemy

combatants during a war—a matter with grave national security

implications. Permitting damages suits by detainees may allow

our enemies to “obstruct the foreign policy of our government.”

Moreover, dealing with foreign relations is primarily delegated

to the executive and legislative branches, see U.S. CONST. art. I,

§ 8, cls. 11–16; id. art. II, § 2, and creating a damages action

could produce “multifarious pronouncements by various

departments.” Nor does our government’s unanimous

condemnation of torture answer this concern, since where to

draw that line is the subject of acrimonious debate between the

executive and legislative branches. Treatment of detainees is

inexorably linked to our effort to prevail in the terrorists’ war

against us, including our ability to work with foreign

governments in capturing and detaining known and potential

terrorists. Judicial involvement in this delicate area could

undermine these military and diplomatic efforts and lead to

“embarrassment of our government abroad.” Accordingly, all

of the special factors we identified in Sanchez-Espinoza apply

to this case and plaintiffs cannot bring their claims under Bivens.

4

II

A

The majority holds plaintiffs cannot bring a RFRA claim

because they are not “person[s]” within the meaning of that

statute. Yet, “[a] fundamental canon of statutory construction is

that, unless otherwise defined, words will be interpreted as

taking their ordinary, contemporary, common meaning.” Perrin

v. United States, 444 U.S. 37, 42 (1979). RFRA does not define

“person,” so we must look to the word’s ordinary meaning.

There is little mystery that a “person” is “an individual human

being … as distinguished from an animal or a thing.”

WEBSTER’S NEW INTERNATIONAL DICTIONARY 1686 (1981).

Unlike the majority, I believe Congress “[did not] specifically

intend[] to vest the term ‘persons’ with a definition … at odds

with its plain meaning.” Rasul v. Rumsfeld, 433 F. Supp. 2d 58,

67 (D.D.C. 2006).

The majority does not point to a single statute defining

“person” so narrowly as to exclude nonresident aliens from its

ambit, and nothing in RFRA’s history suggests Congress

focused on the term’s scope here. RFRA originally provided

that “[g]overnment shall not substantially burden a person’s

exercise of religion” unless such a burden is “the least restrictive

means of furthering [a] compelling governmental interest.” 42

U.S.C. § 2000bb-1 (1994) (emphasis added). It defined

“exercise of religion” as “the exercise of religion under the First

Amendment to the Constitution.” Id. § 2000bb-2(4) (emphasis

added). The reference to the “First Amendment” made it clear

that persons who did not have First Amendment rights were not

protected by RFRA. Given this clear textual basis, the term

“person” did no work as a limiting principle—“First

Amendment” did the job.

5

In the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”) of 2000, Pub. L. No. 106-274, 114 Stat. 803,

Congress amended RFRA’s definition of “exercise of religion”

to cover “any exercise of religion, whether or not compelled by,

or central to, a system of religious belief,” and removed the term

“First Amendment.” See id. §§ 7(a), 8(7)(A), 114 Stat. 806,

807. This change was meant to “clarify[ ] issues that had

generated litigation under RFRA” by providing that “[r]eligious

exercise need not be compulsory or central to the claimant’s

religious belief system.” H.R. REP. NO. 106-219, at 30 (1999);

see also Adkins v. Kaspar, 393 F.3d 559, 567–68 & n.34 (5th

Cir. 2004) (citing pre-RLUIPA cases requiring “the religious

exercise burdened to be ‘central’ to the religion”). Congress

wanted to expand RFRA’s protections to a broader range of

religious practices, see Navajo Nation v. U.S. Forest Serv., 479

F.3d 1024, 1033 (9th Cir. 2007); there is no indication it wanted

to broaden the universe of persons protected by RFRA.

However, by removing the term “First Amendment” from

RFRA, Congress inadvertently deleted the textual hook

precluding persons who did not have First Amendment rights

from asserting RFRA claims.

The panel majority attempts to cure the problem created by

Congress’s careless amendment by constricting the meaning of

the term “person.” This boils down to a claim that, by removing

the term “First Amendment” from RFRA’s definition of

“exercise of religion,” Congress sub silentio changed RFRA’s

definition of “person.” But this transforms statutory

interpretation into a game of whack-a-mole: a deleted textual

hook does not simply re-appear in another statutory term.

Finding no other support for its constricted definition of

“person,” the majority turns to decisions interpreting

constitutional provisions: Johnson v. Eisentrager, 339 U.S. 763

(1950) (Fifth Amendment), and United States v.

6

Verdugo-Urquidez, 494 U.S. 259 (1990) (Fourth Amendment).

Eisentrager rejected this circuit’s conclusion that the breadth of

the term “person” in the Fifth Amendment expanded the

coverage of the Due Process Clause beyond its traditional limits.

Nevertheless, nowhere in its extensive discussion did the Court

rely on the definition of “person.”2 Its holding turned on the

conventional understanding of the Fifth Amendment, the “full

text” of that Amendment, and the foreign policy complexities of

allowing aliens to assert constitutional rights. Id. at 782–83.3

Moreover, Eisentrager interpreted the Due Process Clause;

RFRA implements the Free Exercise Clause. The term “person”

does not appear in the Free Exercise Clause, see U.S. CONST.

amend. I (“Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof

… .”), and thus the definition of “person” cannot be the reason

aliens held abroad do not have free exercise rights, see

Boumediene, 476 F.3d at 993 (implying Guantanamo detainees

do not have First Amendment rights even though “[t]he First

Amendment’s guarantees of freedom of speech and free exercise

of religion do not mention individuals”).

2

Similarly, none of the other Fifth Amendment cases the

majority cites rely on the definition of “person.” See Jifry v. FAA, 370

F.3d 1174, 1182–83 (D.C. Cir. 2004) (not mentioning the term

“person” in holding nonresident aliens with insufficient contacts do

not have Fifth Amendment rights); People’s Mojahedin Org. of Iran

v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C. Cir. 1999) (same for

foreign entities).

3

In fact, the Eisentrager Court repeatedly used the term

“person” in its common meaning. See id. at 768 n.1 (citing cases

brought on behalf of “persons,” referring to “German enemy aliens”);

id. at 783 (“The Court of Appeals has cited no authority whatever for

holding that the Fifth Amendment confers rights upon all persons

….”).

7

Verdugo is even less helpful to the majority. Unlike

Eisentrager, Verdugo did rely on a definitional analysis,

explaining that the Fourth Amendment did not apply to

nonresident aliens outside of our borders, in part, because “the

people” referred to in the Amendment identifies a “class of

persons who are part of a national community or who have

otherwise developed sufficient connection with this country to

be considered part of that community.” 494 U.S. at 265

(emphasis added). While “the people” are merely a “class of

persons,” the relevant inquiry for RFRA purposes is “who are

‘persons’?” The answer is obvious— “persons” are individual

human beings, of whom the American people are just one class.

B

While the majority’s approach is untenable, the plaintiffs

still do not prevail. RFRA’s proscription that “[g]overnment

shall not substantially burden a person’s exercise of religion”

and RLUIPA’s new definition of “exercise of religion” as “any

exercise of religion, whether or not compelled by, or central to,

a system of religious belief,” leave no textual basis for

prohibiting suits brought by non-resident aliens held at

Guantanamo, or foreign nationals who work for American

officials on NATO military bases, or, arguably, jihadists our

soldiers encounter on foreign battlefields.4 While “statutory

language represents the clearest indication of Congressional

4

The term “government” provides no limiting basis since RFRA

defines this term as including an “official (or other person acting under

color of law) of the United States, or of a covered entity.” 42 U.S.C.

§ 2000bb-2(1). Defendants, the Secretary of Defense and high-

ranking military officers, are unquestionably officials of the United

States. Moreover, as the majority points out, since defendants are

officials of the United States, it is irrelevant whether Guantanamo Bay

Naval Base is a “covered entity.” Maj. op. 35 n. 19.

8

intent,” we may go beyond the text in those “rare cases” where

a party can show that “the literal application of a statute will

produce a result demonstrably at odds with the intentions of its

drafters.” Nat’l Pub. Radio, Inc. v. FCC, 254 F.3d 226, 230

(D.C. Cir. 2001) (internal quotation omitted).

The unusual drafting history of RFRA and RLUIPA make

this one of those rare cases. RFRA originally only provided for

suits for violation of First Amendment rights, which did not

include intrusions on the free exercise of those in plaintiffs’

position. See Cuban Am. Bar Ass’n, Inc. v. Christopher, 43 F.3d

1412, 1428 (11th Cir. 1995). There is no doubt that RLUIPA’s

drafters, in changing the definition of “exercise of religion,”

wanted to broaden the scope of the kinds of practices protected

by RFRA, not to increase the universe of individuals protected

by RFRA. See H.R. REP. NO. 106-219, at 30; Adkins, 393 F.3d

at 567–68 & n.34; Navajo Nation, 479 F.3d at 1033. Literal

application of RFRA would force us to hold Congress’s careless

drafting inadvertently expanded the scope of RFRA plaintiffs.

Such a result is “demonstrably at odds with the intentions of

[RLUIPA’s] drafters.” See Nat’l Pub. Radio, 254 F.3d at 230.

Even if I believed RLUIPA expanded the scope of persons

protected by RFRA, I would have no trouble concluding

defendants are protected by qualified immunity.5 There was

strong reason for defendants to believe RFRA originally did not

apply to plaintiffs. While RLUIPA changed RFRA, it was far

5

There is some uncertainly about whether qualified immunity is

available to federal officials sued under RFRA. See Kwai Fun Wong

v. United States, 373 F.3d 952, 977 (9th Cir. 2004) (“Neither this court

nor any other court of appeals has decided whether qualified immunity

is available to a federal government official sued under RFRA.”). In

this case, however, Plaintiffs have assumed that qualified immunity is

available and have thus waived any argument to the contrary.

9

from clearly established that this change expanded the class of

persons protected by RFRA.

C

Accepting plaintiffs’ 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. Yet, the

majority’s approach is not much better. It leaves us with the

unfortunate and quite dubious distinction of being the only court

to declare those held at Guantanamo are not “person[s].” This

is a most regrettable holding in a case where plaintiffs have

alleged high-level U.S. government officials treated them as less

than human.

In drafting RFRA, Congress was not focused on how to

accommodate the important values of religious toleration in the

military detention setting. If Congress had focused specifically

on this challenge, it would undoubtably have struck a different

balance: somewhere between making government officials’

pocketbooks available to every detainee not afforded the full

panoply of free exercise rights and declaring those in our

custody are not “persons.” It would not have created a RFRA-

like damage remedy, but it likely would have prohibited, subject

to appropriate exceptions, unnecessarily degrading acts of

religious humiliation. It would have sought to deter such acts

not by compensating the victims, but by punishing the perpetra-

tors or through other administrative measures. See, e.g., Ronald

W. Reagan National Defense Authorization Act for Fiscal Year

2005, Pub. L. No. 108-375, §§ 1091 to 1092, 118 Stat. 1811,

2068–71 (2004) (to be codified at 10 U.S.C. § 801 note)

(creating an administrative regime to prevent unlawful treatment

of detainees); Detainee Treatment Act of 2005, Pub. L. 109-148,

§ 1003(a), 119 Stat. 2739 (to be codified at 42 U.S.C. § 2000dd)

10

(“No individual in the custody or under the physical control of

the United States Government, regardless of nationality or

physical location, shall be subject to cruel, inhuman, or degrad-

ing treatment or punishment.”). Judicial interpretation without

text is at best a stop-gap; at worst, a usurpation. In 2000, when

Congress amended RFRA, jihad was not a prominent part of our

vocabulary and prolonged military detentions of alleged enemy

combatants were not part of our consciousness. They are now.

Congress should revisit RFRA with these circumstances in

mind.