Opposition Brief — Rasul v. Myers (No. 08-235)

Supreme Court, US

THER

J);

\ Y Jr GL ‘ME Creche

No. 08-235 ‘ees

Jn the Supreme Court of the Gnited States

SHAFIQ RASUL, ET AL., PETITIONERS

V.

RICHARD MYERS, ET AL.

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

GREGORY G. GARRI

Solicitor General

Counsel of Record

GREGORY G. KATSA

Assistant Attorney General

JONATHAN F, COHN

De puty Assistant Attorney

CGreneral

ROBERT M. LOEB

MATTHEW M. COLLETTE!

lttorneyus

Department of Justices

/

Wash naoton Pa hy POD 5 S0-0C00]

) mF lob me,

/ }

‘ i

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that

the Religious Freedom Restoration Act of 1993, 42

U.S.C. 2000bb et seq., does not provide relief to aliens

captured during a time of armed conflict and held out-

side the United States at Guantanamo Bay, Cuba.

2. Whether the court of appeals correctly held that

respondents are entitled to qualified immunity on peti-

tioners’ constitutional claims.

3. Whether the court of appeals correctly held that

the United States should be substituted for the indi-

vidual defendants pursuant to the Federal Employees

Liability Reform and Tort Compensation Act of 1988

(Westfall Act), 28 U.S.C. 2679(b)(1).

TABLE OF CONTENTS

Page

I MN sc 5 os ew bv cee een ads 6 aaa bake eee 1

yin ouiady bkG WLU EERE SO RROD Roe et 1

I is Saely ca ak wn dea RR ORR GS MO ae eee 2

lin ess ae 4k 4 HIRE AA eA 9

IE one es ae any pega a ety hein Gee ane 28

TABLE OF AUTHORITIES

Cases:

Adarand Constructors, Inc. v. Mineta, 534 U.S. 103

Sid he oer argh ao he Gnd Ee aOR Ae ack OO 17

Al Odahk v. United States, 321 F.3d 1134 (D.C. Cir.

2003), rev'd on other grounds swb nom. Rasul v.

po pe BR | ee a ea ae 20

Anderson v. Creighton, 483 U.S. 685 (1987) ......... 16, 21

Boumediene v. Bush:

476 F.3d 981 (D.C. Cir. 2007), rev'd, 128 S. Ct. 2229

ae Ne ens 8S cd ik A ree Rae ea ee 7

Er rt LE gS Ca eda cces 17, 18, 20

Brosseau v. Haugen, 543 U.S. 194 (2004)... 2.2... 17

Bush v. Lucas, 462 U.S. 367 (1983) ...... 24

City of Boerne v. Flores, 521 U.S. 507 (1997) .. 22... .. 14

Councilon Am. Islamic Relations v. Ballenger,

444 F.3d 659 (D.C. Cir. 2006) .........-. vaaaeas 25, 26

Cuban Am. Bar Ass'n v. Christopher, 43 F.3d 1412

(11th Cir.), cert. denied, 515 U.S. 1142, and 516

ee ee CN Ci ka ee ead eh ebees 12, 17, 20

29

(IIT)

Cases—Continued: Page

Elder v. Holloway, 510 U.S. 510 (1994) ............... 23

Employment Div., Dep't of Human Res. v. Smith,

on ry ee ae 1]

Estate of Marcos Human Rights Litig., In re, 25 F.3d

1467 (9th Cir. 1994), cert. denied, 513 U.S. 1126

err ere re py re re ea rae rar 25

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) .... 25

Florida Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 527 U.S. 627 (1999) ............. 16

Goldman v. Weinberger, 475 U.S. 503 (1986) ........... 13

Haddon v. United States, 68 F.3d 1420 (D.C. Cir.

SN cae ee re Pe Rh ae cca ox’ 24, 26

Harlow v. Fitzgerald, 457 U.S. 800 (1982) 2... 0.2.0.2... 15

Hope v. Pelzer, 536 U.S. 730 (2002) ............. 21, 22, 23

Hunter v. Bryant, 502 U.S. 224 (1991) ........... 020. 16

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

denied, 543 U.S. 1146 (2005)

Johnson v. Eisentrager, 339 U.S. 763 (1950) ... 8, 18, 19, 21

Johnson v. Weinberg, 434 A.2d 404 (D.C. 1981) ........ 26

Khouzam v. Hogan, 529 F. Supp. 2d 543 (M.D. Pa.

NE kw bea ax es Bene ere eta Pe TOPLESS

Lyon v. Carey, 533 F.2d 649 (D.C. Cir. 1976) 2... 2.6... 26

Malley v. Briggs, 47 U.S. 335 (1986) 2.0.0... cee es 16

Matsushita Elec. Indus. Co. v. Rpstein, 516 U.S. 367

ak OSA wine a tee « total ey |

Nurnwyv. Gonzales, 404 F.3d 1207 (9th Cir. 2005) . 2

|

| = ee ee = :

Mitchell v. Forsyth, 472 U.S. 511 U98d) . 2 eee 16

O'’Lone v. Estate of Shahazz, AS2 U.S. 342 (1987) 13

Cases—Continued: Page

Pearson v. Callahan, 128 S. Ct. 1702 (2008) ............ 17

Peoples Mojahedin Org. v. United States, 182 F.3d 17

(D.C. Cir. 1999), cert. denied, 529 U.S. 1104

le yates GA ake ved ewan 13, 21

Ramey v. Bowsher, 915 F.2d 731 (D.C. Cir. 1990) ...... 28

Rasul v. Bush, 542 U.S. 466 (2004) ................... 20

Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir.

ee kok bids wah ine keke 9, 24

Saucier v. Katz, 533 U.S. 194 (2001) .................. 16

Schneider v. Kissinger, 310 F. Supp. 2d 251 (D.D.C.

2004), aff’d, 412 F.3d 190 (D.C. Cir. 2005), cert.

Cg eR 27

Stokes v. Cross, 327 F.3d 1210 (D.C. Cir. 2008) ......... 25

32 County Sovereignty Comm. v. Department of

State, 282 F 3d TS7 (D.C. Cir. 2002) ................ 19

United States ex rel. Turner v. Williams, 194 U.S.

ee ge ae in ek ae On

United States v. Lanier, 520 U.S. 259 (1997) ........ ol, ae

United States v. Smith, 499 U.S. 160 (1991)... 2.2.2.2... 24

United States v. Verdugo-Urquidez, 494 U.S. 259

ere bw aa ss Tercera ©) ey. ei

Vermilua-Brown Co. v. Connell, 335 U.S. 377 (1948) .... 13

Weinberg v. Johnson, 518 A.2d 985 (D.C. 1986). . ea

Wilkie v. Robbins, 127 S. Ct. 2588 (2007) .............. 24

Wilson v. Layne, 526 U.S. 603 (1999) ck a ee 20

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .............. 18

Zadvydas v. Davis, 5383 U.S. 678 (2001) Ree eee 19

Zuncac V. Gramayjo, 886 F.Supp. 162 (D. Mass. 1995). . 25

VI

Constitution and statutes: Page

U.S. Const.:

Art. I, § 9:

Cl. 2 (Suspension Clause) .....................- 15

Cl. 3:

eran Mecmnmer Clause .................6... 15

mx Post Facto Clause .............0....0c000. 15

AE ee 12,13, 14, 15, 17

ES 12, 24

Amend. V (Due Process Clause) .............. passim

ea Nk eka os ow ane ae 6d passim

a bn uo a ube wneeeene® 15, 18

Alien Tort Statute, 28 U.S.C. 1350 .................... 3

Authorization for Use of Military Force, Pub. L. No.

EG | a Z

Fair Labor Standards Act of 1938, 29 U.S.C. 201

ee aa ea ke Sad x wuieh dea s6 40 ca peonees 13

Federal Employees Liability “eform and Tort

Compensation Act of 1988 (Westfall Act), 28 U.S.C.

re ae, ws fas ones she mee ss eee s 4, 24, 28

Federal Tort Claims Act, ch. 753, Tit. IV, 60 Stat. 842 ...5

Foreign Sovereign Immunities Act of 1976, 28 U.S.C.

a TE SA a 2a

Religious Freedom Restoration Act of 1993, 42 U.S.C.

ca nis vec ces uses es’ 4

eee, CEL) ww cw cc ee cane .11,13

BOR BR 0S SN) | ee a ae

4? U.S.C. 2000bb-1(a)

4? ULS.C. 2000bb-1(b) ey er ear

Vil

Statutes—Continued: Page

ee as ND ok bak sens b wed ee eae 10

ey ees I oo ins 6 do os cone aw swedwdae 5

Miscellaneous:

H.R. Rep. No. 88, 103d Cong., 1st Sess. (1993) ......... 1]

S. Rep. No. 111, 103d Cong., ist Sess. (1993) ..... 11, 12, 16

Restatement (Second) of Agency (1958) .............. 25

In the Supreme Court of the Anited States

No. 08-235

SHAFIQ RASUL, ET AL., PETITIONERS

Vv.

RICHARD MYERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRI? F FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 3a-66a)

is reported at 512 F.3d 644. The opinions of the district

court (Pet. App. 7la-99a, 102a-145a) are reported at 433

EF. Supp. 2d 58 and 414 F. Supp. 2d 26, respectively.

JURISDICTION

The judgment of the court of appeals (Pet. App. la-

2a) was entered on January 11, 2008. A petition for re-

hearing was denied on March 26, 2008 (Pet. App. 146a-

147a). On June 2, 2008, the Chief Justice extended the

time within which to file a petition for a writ of certiorari

to and including August 22, 2008, and the petition was

filed on that date. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

?

—

STATEMENT

1. a. Inthe wake of the terrorist attacks of Septem-

ber 11, 2001, the President took immediate action to

prevent additional attacks, and Congress swiftly ap-

proved his use of “all necessary and appropriate force

against those nations, organizations, or persons he de-

termines planned, authorized, committed, or aided the

terrorist attacks that occurred on September 11, 2001.”

Authorization for Use of Military Force, Pub. L. No.

107-40, § 2(a), 115 Stat. 224 (Sept. 18, 2001). The Presi-

dent ordered United States Armed Forces to subdue

both the al Qaeda terrorist network and the Taliban re-

gime that harbored it in Afghanistan. Although United

States and allied troops have removed the Taliban from

power and dealt al Qaeda forces a heavy blow, arraed

combat continues.

During that conflict, the United States, consistent

with the law and settled practice of armed conflict, has

seized many hostile persons and detained a small pro-

portion of them as enemy combatants. A number of

those individuals have been or sre being held at the

United States Naval Base at ‘;uantanamo Bay, Cuba

(Guantanamo).

b. Petitioners are four British citizens who were

captured in Afghanistan in the months following Sep-

tember 11. Pet. App. 104a-105a, 165a-166a. According

to the allegations in their complaint, which are not con-

ceded but must be taken as true at this stage of the liti-

gation, three of the petitioners were captured by a war-

lord in Afghanistan in November 2001 and turned over

to the United States. /d. at 165a. The fourth petitioner

alleges he was captured by the Taliban, released, and

then detained by United States forces. /d. at 165a-166a.

All four petitioners were transferred to Guantanamo In

3

early 2002 and released in March 2004. /d. at 167a,

207a.

2. After petitioners were released from United

States custody and sent to the United Kingdom, they

brought this civil action against then-Secretary of De-

fense Donald H. Rumsfeld and ten other senior Depart-

ment of Defense officials in their individual capacities.

Petitioners alleged that they suffered inhumane treat-

ment, some of which they allege constituted torture, at

the hands of unidentified United States military person-

nel. Pet. App. 167a, 189a-207a. They also alleged that

United States military officials infringed on the practice

of their religion, at times interfering with their prayers

and withholding or desecrating copies of the Koran. /d.

at 223a. Petitioners alleged that their mistreatment

“was not simply the product of isolated or rogue actions

by individual military personnel,” because it stemmed

from “deliberate and foreseeable” action taken to “co-

erce nonexistent information regarding terrorism.” /d.

at 168a-169a. They alleged that “[t}he torture, threats,

physical ana psychological abuse inflicted upon [peti-

tioners] were devised, approved, and implemented by

Defendant Rumsfeld and other [respondents] in the mil-

itary chain of command. These techniques were in-

tended as interrogation techniques to be used on detain-

ees.” Jd. at 208a. Petitioners further alleged that re-

spondents knew that petitioners were tortured or mis-

treated, “took no steps to prevent the infliction of tor-

ture and other mistreatment,” and “authorized and en-

couraged the infliction of torture and other mistreat-

ment against [petitioners].” /d. at 212a-213a.

Petitioners’ complaint sought relief under the Alien

Tort Statute (ATS), 28 U.S.C. 1350, for alleged viola

T)

tions of international law (Counts 1-3). Pet. App. 214a

4

218a. Petitioners also claimed that respondents had

violated unspecified provisions of the Third and Fourth

Geneva Conventions (Count 4), id. at 218a-219a, the

Fifth and Eighth Amendments to the United States

Constitution (Counts 5 and 6), id. at 219a-222a, and the

Religious Freedom Restoration Act of 1993 (RFRA), 42

U.S.C. 2000bb et seg. (Count 7), Pet. App. 222a-224a.

Pursuant to the Federal Employees Liability Reform

and Tort Compensation Act of 1988 (Westfall Act), 28

U.S.C. 2679(b)(1), the Attorney General (through his

designee) certified that, “at the time of the conduct al-

leged in the complaint,” the individual respondents

“were acting within the scope of their employment as

employees of the United States,” and substituted the

United States for the individual respondents on the

claims for violation of the ATS and the Geneva Conven-

tions. C.A. App. 60; see 28 U.S.C. 2679(b)(1) (making a

suit against the United States the exclusive remedy for

seeking money damages for the wrongful act or omission

of a Government employee acting in the scope of em-

ployment). Respondents moved to dismiss those counts

because petitioners had not exhausted their administra-

tive remedies. Respondents also moved to dismiss the

constitutional and RFRA claims on the basis of qualified

immunity.

3. a. In its initial decision, the district court de

ferred consideration of the RFRA claim but granted re-

spondents’ motion to dismiss the other claims. Pet. App.

100a-146a. On the international law claims (under the

ATS and the Geneva Conventions), the court held that

the United States had been properly substituted for the

individual defendants. /d. at 110a-llla. Applying the

respondeat superior law of the District of Columbia, the

court held that respondents were acting within the scope

5

of their employment when the alleged acts occurred.

The court determined that the United States had “au-

thorized military personnel in Guantanamo to exercise

control over the detainees and question the detainees

while in the custody of the United States,” and that “the

complaint points to actions which arose specifically from

authorized activities.” /d. at 119a. After substituting

the United States, the court dismissed the claims be-

cause petitioners had not exhausted their administrative

remedies under the Federal Tort Claims Act (FTCA),

ch. 753, Tit. IV, 60 Stat. 842. Pet. App. 130a-131a.

b. On the constitutional claims, the district court

held that respondents are entitled to qualified immunity.

Pet. App. 13la-143a. The court declined to determine

whether petitioners had alleged constitutional violations,

holding that respondents are entitled to qualified immu-

nity because any constitutional rights with respect to

Guantanamo detainees were not clearly establisned at

the time of the conduct. /d. at 1384a-1438a.

e. After supplemental briefing, the district court

addressed petitioners’ RFRA claim and denied respon-

dents’ motion to dismiss. Pet. App. 70a-99a. Noting that

the statute extends by its terms to “each territory and

possession of the United States,” 42 U.S.C. 2000bb-2(2),

the court held that Guantanamo is a “possession” of the

United States within the meaning of the statute. Pet.

App. 8la-&3a. The court then held that RFRA applies to

non-resident aliens like petitioners because aliens de-

tained at Guantanamo are “persons” for purposes of

RFRA. /d. at 88a-89a. It also held that respondents are

not entitled to qualified immunity on the RFRA claim

because the rights of Guantanamo detainees under

RFRA were clearly established at the time of petition-

ers’ detention. /d. at 94a-99a.

6

4. The court of appeals affirmed in part and re-

versed in part. Pet. App. la-66a.

a. The court of appeals first held that petitioners’

claims against the individual respondents under the ATS

were properly dismissed pursuant to the Westfall Act.

Applying D.C. law concerning the scope of employment,

the court concluded that, taking the allegations in the

complaint as true, respondents had acted within the

scope of their employment. Pet. App. 2la-32a. In par-

ticular, it concluded that “the underlying conduct—here,

the detention and interrogation of suspected enemy

combatants—is the type of conduct [respondents] were

employed to engage in.” /d. at 25a-26a. The court noted

that, while petitioners “challenge{d] the methods [re-

spondents] used to perform their duties,” they did “not

allege that [respondents] acted as rogue officials or em-

ployees who implemented a policy of torture for reasons

unrelated to the gathering of intelligence.” /d. at 26a.

Because respondents’ alleged conduct fel] within the

scope of employment for purposes of the Westfail Act,

the court of appeals held that the ATS claims were prop-

erly restyled as claims against the United States under

the FTCA. Pet. App. 30a. The court then held that the

district court correctly dismissed the FTCA claims be-

cause petitioners had not exhausted their administrative

remedies. /d. at 3la-32a.'

For the same reason, the court of appeals affirmed

the dismissal of petitioners’ claim under the Geneva

Conventions. It held that the alleged conduct falls with-

in the scope of employment, and a suit against respon-

Noting that the legal issue could be decided on the basis of petition

ers’ allegations, the court of appeals also held that the district court did

Its discretion in denying petitioners request for discovery on

r ; a

Cope Oo. crnploymen ret App edab- bed

land

(

dents is precluded by the Westfall Act. Pet. App. 34a-

30a.

b. The court of appeals affirmed the dismissal of peti-

tioners’ Bivens ciaims asserting violations of their Fifth

and Eighth Amendment rights. Pet. App. 36a-44a. The

court observed that it had recently held in Boumediene

v. Bush, 476 F.3d 981, 984 (D.C. Cir. 2007), rev'd, 128 S.

Ct. 2229 (2008), that detainees at Guantanamo lack con-

stitutional rights because they are aliens without prop-

erty or presence in the United States. Pet. App. 36a-

ova.

The court of appeals also held that “[e]ven assuming

arguendo the detainees can assert their Fifth and

Eighth Amendment claims, those claims are nonetheless

subject to [respondents’] assertion of qualified immu-

nity.” Pet. App. 41a. The court observed that, even be-

fore its decision in Boumediene, “courts did not bestow

constitutional rights on aliens located outside sovereign

United States territory.” /d. at 42a. The court also held

that, “|[bjased on the plain text of the lease [between the

United States and Cuba] and on case law, it was not

clearly established at the time of the alleged violations

* * * that a reasonable officer would know that Guan-

tanamo is sovereign United States territory.” /d. at 44a.

ec. The court of appeals held that the district court

erred in denying respondents’ motion to dismiss the

RFRA claim. Pet. App. 45a-54a. Finding it unnecessary

to address whether RFRA generally applies extra-

territorially, the court determined that petitioners are

not “persons” covered by the statute. /d. at 45a-46a.

The court of appeals noted that, while RFRA’s text

does not define “person,” under various constitutional

provisions the term does not include non-resident aliens.

Pet. App. 47a. Because RFRA‘s purpose was “to restore

8

what, in the Congress’s view, is the free exercise of reli-

gion guaranteed by the Constitution,” the court deter-

mined that “‘person’ as used in RFRA should be inter-

preted as it is in constitutional provisions.” /d. at 52a.

The court noted that this Court had previously held that

German nationals held in Germany were not “persons”

under the Fifth Amendment, Johnson v. Eisentrager,

339 U.S. 763, 783 (1950), and that the term “people” as

used in the Fourth Amendment does not include non-

resident aliens, United States v. Verdugo-Urquidez, 494

U.S. 259, 269 (1990). Pet. App. 53a. Thus, the court con-

cluded that “RFRA’s use of ‘person’ should be inter-

preted consistently with the Supreme Court's interpre-

tation 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 out-

side sovereign United States territory at the time their

alleged RFRA claim arose, they do not fall with[in] the

definition of ‘person.’” Jd. at 54a (footnote omitted).

d. Judge Brown concurred. Pet. App. 55a-66a. She

ayreed that the ATS and Geneva Convention claims

must be dismissed. /d. at 55a. She also agreed that the

Bivens claims for constitutional violations were properly

dismissed, but she reached that conclusion without ad-

dressing the applicability of the Fifth and Eighth

Amendments to Guantanamo detainees. Judge Brown

would have held that special factors counsel hesitation

in the creation of a Biver = remedy in this context, rely

ingy on circuit precedent refusing to allow a Bivens a

4 he . > j ° ‘ } . es

The court declined to determine whether qualified immunity

| | ‘ . } 2 » >4 . . } >

available for claims brought under RFRA, but noted that “[bloth the

9

‘

tion “for Nicaraguans who brought claims against U.S.

government officials for supporting the Contras” be-

cause it would have significant national security and

foreign policy implications. /d. at 55a-58a (discussing

Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir.

1985)).

Judge Brown also concurred in the majority’s hold-

ing that the RFRA claim must be dismissed, but for dif-

ferent reasons. She disagreed with the panel’s holding

that the term “person,” as used in RFRA, did not apply

to nonresident aliens. Pet. App. 59a-63a. Yet, she con-

cluded that other factors left no doubt that Congress did

not intend for RFRA to apply to petitioners. /d. at 68a.

Even if that were not true, she “would have no trouble

concluding [respondents] are protected by qualified im-

munity,” because RF RA’s application to aliens like pe-

titioners was not clearly established. /d. at 63a-65a.

Judge Brown concluded that “|aJecepting [petitioners’!

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.” /d. at 65a.

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with decisions of this Court or any other court of

appeals. The court of appeals reasonably concluded that

military detainees could not impose personal monetary

liability on the Nation’s military commanders for over-

seas conditions of confinement during a time of war. At

the very least, any such right was not clearly established

at the time of petitioners’ detention in Guantanamo.

Nor is this case the proper vehicle for addressing the

application of RFRA to aliens outside the United States

10

or whether the Fifth and Eighth Amendments apply to

Guantanamo detainees. Because respondents here will

in any event be entitled to qualified immunity with re-

spect to the RFRA and constitutional claims, the peti-

tion for a writ of certiorari should be denied.

1. The court of appeals’ holding that petitioners’

RFRA claim was correctly dismissed (Pet. App. 45a-54a)

does not warrant this Court’s review.

a. The court of appeals correctly held that RFRA

does not apply to aliens detained at Guantanamo.

RFRA provides that the “Government shall not substan-

tially burden a person’s exercise of religion” unless the

government “demonstrates that application of the bur-

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

governmental interest; and (2) is the least restrictive

means of furthering that compelling governmental inter-

est.” 42 U.S.C. 2000bb-1(a) and (b). RFRA also gives a

statutory right of action to a “person whose religious

exercise has been burdened.” 42 U.S.C. 2000bb-1(c).

The statute does not define the term “person.” Nor

does it specify that the term includes aliens outside the

sovereign territory of the United States. Petitioners

insist that the term should be read expansively to cover

any individual anywhere under any circumstances—an

interpretation that would apply not just to Guantanamo

detainees, but to any detainee held in any detention fa-

cility during any war. As Judge Brown recognized in

her concurring opinion, such a holding “would revolu-

tionize the treatment of captured combatants in a way

Congress did not contemplate.” Pet. App. 65a. It would

allow wartime detainees to sue and recover money from

their captors during an ongoing war.

The court of appeals correctly concluded, on the ba-

sis of statutory context, that Congress did not intend for

11

RFRA to apply to such aliens. Pet. App. 48a-49a. As its

title indicates, the Religi us Freedom Restoration Act

was intended to restore free exercise rights for those

who previously had them—not to create new rights that

had never previously been recognized. RFRA was en-

acted in response to this Court’s decision in E’mploy-

ment Division, Department of Human Resources v.

Smith, 494 U.S. 872 (1990), which held that a generally

applicable law may burden a religious exercise even

when the government does not demonstrate a compel-

ling interest for its rule. /d. at 884-889. As the statu-

tory text plainly says, Congress’s express purpose in

RFRA was to “restore the compelling interest 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) (emphasis added).*

The legislative history is equally clear in expressing

Congress’s expectation that courts would look to pre-

Smith cases to apply RFRA. See H.R. Rep. No. 88, 103d

Cong., Lst Sess. 6-7 (1993); S. Rep. No. 111, 103d Cong.,

Ist Sess. 9 (1993); see also id. at 9 (“the compelling in-

terest test generally should not be construed more strin-

gently or more leniently than it was prior to Smith”); 7d.

at 2 (the Act “responds to the Supreme Court’s decision

a? 7? Smith by creating a statutory prohibition

against government action substantially burdening the

exercise of religion”) (footnote omitted). As the Senate

Report stated, “the purpose of this act is only to over

A second purpose articulated in the statute, to “provide a claim or

lefense to persons whose religous exercise is substantially burdened

by government,” 42 U.S.C. 2000bb(b)(2), merely begs the question pre

sented here: whether aliens abroad are “persons “whose religious ex

ercise may not be burdened except by meeting the compelling-interest

standard

12

—

turn the Supreme Court’s decision in Smith.” Id. at 12

(emphasis added).

In light of the expressly stated purpose of Congress

simply to restore the compelling-interest test for pre-

existing free exercise claims, the court of appeals cor-

rectly held that the “person[s]” protected by RFRA are

those who had recognized constitutional rights at the

time RFRA was enacted. Pet. App. 48a-49a. Petitioners

do not dispute that when Congress enacted RFRA, it

had long been established that aliens outside United

States territorial jurisdiction who lacked a substantial

connection to the United States were not entitled to

First Amendment protections. See United States ex rel.

Turner v. Williams, 194 U.S. 279, 292 (1904) (Turner):

see also United States v. Verdugo-Urquidez, 494 U.S.

259, 265 (1990). Indeed, applying those principles in

1995, the Eleventh Circuit specifically held that aliens at

Guantanamo could not assert First Amendment rights.

Cuban Am. Bar Ass'n v. Christopher, 43 F.3d 1412,

1429-1430, cert. denied, 515 U.S. 1142, and 516 U.S. 913

(1995).

The courts had also made clear that the “people” pro-

tected by the Fourth Amendment are “a class of persons

who are part of a national community or who have other-

wise developed sufficient connection with this country to

be considered part of that community.” Verdugo-Urqui-

dez, 494 U.S. at 265; see Turner, 194 U.S. at 292 (an ex-

cludable alien is not entitled to First Amendment rights

because the alien “does not become one of the people to

whom these things are secured by our Constitution by

an attempt to enter forbidden by law”). Courts had also

uniformly held that aliens “outside the sovereign terri-

tory of the United States” are not “person|s]” under the

Fifth Amendment. See Verdugo-Urquidez, 494 U.S. at

13

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

cert. denied, 543 U.S. 1146 (2005); Peoples Mojahedin

Org. v. United States, 182 F.3d 17, 22 (D.C. Cir. 1999),

cert. denied, 529 U.S. 1104 (2000).*

Because RFRA merely “restore[d] the compelling

interest test as set forth in Sherbert,” 42 U.S.C.

2000bb(b)(1), and because that test afforded no protec-

tion to aliens abroad who lacked a:substantial connection

to the United States, it follows that Congress did not

intend that the definition of “person” in RFRA extend to

those aliens. Petitioners’ argument to the contrary

would create a result demonstrably at odds with the con-

text of the statute and the express intent of Congress.

b. Petitioners contend (Pet. 19-20) that RFRA does

not simply duplicate pre-existing constitutional protec-

tions, but instead extends First Amendment-like pro-

tections “to religious practices” that had previously been

held unprotected under the First Amendment. In sup-

port of that contention, petitioners note that RFRA ap-

plies to prison inmates and military personnel, overrul-

ing cases such as O’Lone v. Estate of Shabazz, 482 U.S.

342 (1987), and Goldman v. Weinberger, 475 U.S. 503

(1986).

But nothing in RFRA purported to extend its reach

to persons who were not previously covered by the First

PS Leedand

* While the Court in Vermilya-Brown Co. v. Connell, 335 U.S. 377

(1948), held that the Fair Labor Standards Act of 1938, 29 U.S.C. 201

ef seq., applied to aliens on a United States military base in Bermuda

(and likened that base to Guantanamo), It also made it clear that anal-

ysis of the geographie application of a statute “depends upon the pur-

pose of the statute.” /d. at 378, 390. In light of RF RA’s purpose to re-

store the pre-Smith standard for free exercise claims, Verni/ya

Brown's discussion of the status of Guantanamo does not establish that

RFRA applies to aliens detained there.

14

Amendment. Residents of the United States seeking to

use narcotics for religious purposes (as in Smith), mili-

tary personnel seeking to wear yarmulkes (as in

Goldman), and prison inmates seeking to attend reli-

gious services (as in O’Lone) had always had First

Amendment rights. RFRA merely ensured that their

free exercise claims would be adjudicated under the pre-

Smith compelling-interest standard. Nowhere does the

statute suggest that Congress intended to give rights to

persons who never had First Amendment rights in the

first instance.”

c. Petitioners mischaracterize the court of appeals’

decision as holding that “because Guantanamo detainees

have no constitutional rights (a blanket proposition re-

jected by this Court in Boumediene), they also have no

rights under RFRA.” Pet. 17-18 (citation omitte:).

That is not what the court of appeals held. Instead, it

held that Congress intended to incorporate the pre-

Smith standard governing free exercise claims, and in-

tended REF'RA’s application to “person|s]” to include

individuals who had recognized free exercise rights.

Pet. App. 48a-49a.

Citing a brief from 1997, petitioners claim (Pet. 20-21) that the

United States has previously argued that “RFRA expressly supple-

ments and extends protection to religious practices that may not be

covered by the Constitution.” In fact, the passage they cite from the

earlier brief simply noted (and cited cases supporting the proposition)

that RFRA created a “statutory right” rather than “new constitutional

rights.” U.S. Br. at 36-37 & n.40, City of Boerne v. Flores, 521 U.S. 507

(1997) (No. 95-2074). Of course RF RA protects “religious practices that

may not be covered by the Constitution” (Pet. 20) as interpreted since

Smith. But that does not mean that Congress intended the new

statutory right to extend to practices that had vever been seen to be

protected by the First Amendment under the compelling-interest test

15

As petitioners acknowledge (Pet. 22), the application

of RFRA is a statutory question about congressional

intent, and not simply a determination of the current

state of the Constitution’s application to aliens at Guan-

tanamo. Thus, the reach of this Court’s decision in Bou-

mediene is not controlling, because it does not resolve

the question of congressional intent as to RFRA. Even

if Bowmediene’s Suspension Clause holding were ex-

tended to the First Amendment, that would not change

the fact that Congress enacted RFRA with the intent to

limit its statutory entitlement to persons who had First

Amendment rights before Smith.°

d. In any event, this case is not a suitable vehicle for

addressing whether RFRA applies to alien detainees

held at Guantanamo because respondents will be enti-

tled to qualified immunity either way. See Pet. App. 64a

(Brown, J., concurring). Government officials perform-

ing discretionary functions are “shielded from liability

for civil damages insofar as their conduct does not vio-

late clearly established statutory or constitutional rights

of which a reasonable person would have known.”

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

added).’ The doctrine of qualified immunity “‘gives am-

ple room for mistaken judgments’ by protecting ‘all but

" The applicability of Bowmediene to other constitutional provisions

is at issue in several cases pending in the lower courts. See, e.g., Jn re

Guantanamo Bay Detainee Litig., Mise. No. 08-442 (TFH) (D.D.C.)

(Due Process); Hamdan v. Gates, No. 04-CV-1519-JR (D.D.C.) (Due

Process, Ex post Facto, Bill of Attainder, Equal Protection); see also

Ahan vy. Gates, No. 07-1324 (D.C. Cir.) (First Amendment).

Petitioners do not dispute Judge Brown's observation (Pet. App

(4a n.d) tnat they “assumed that qualified immunity ts available [on the

RFRA claim] and * * * thus waived any argument to the contrary”

(except by showing that the right they assert was clearly established).

16

the plainly incompetent or those who knowingly violate

the law.’” Hunter v. Bryant, 502 U.S. 224, 229 (1991)

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

To defeat qualified immunity, the right invoked must

be “clearly established” at the time the officer acted,

such that “it would be clear to a reasonable officer that

his conduct was unlawful in the situation he confronted.”

Saucier v. Katz, 533 U.S. 194, 202 (2001); see Anderson

v. Creighton, 483 U.S. 635, 641 (1987). It is not enough

for a plaintiff to identify some generalized right that was

established at the time of the relevant conduct. Saucier,

533 U.S. at 201-202. Rather, “the right the official is

alleged to have violated must have been ‘clearly estab

lished’ in a more particularized, and hence more rele-

vant, sense: The contours of the right must be suffi-

ciently clear that a reasonable official would understand

that what he is doing violates that right.” Anderson, 483

U.S. at 640. While the precise conduct at issue need not

have been previously held to be unlawtul, its “unlawful-

ness must be apparent” in “lght of pre-existing law.”

lbid.; see Mitchell v. Forsyth, 472 U.S. 511, 535 n.12

(1985).

At the time petitioners were detained (between 2002

and March 2004), a reasonable official could have

doubted, a¢ a minimum, that RFRA granted rights to

suspected enemy combatants captured on foreign soil

and held at a military facility abroad during a time of

war. As explained above, a reasonable official could

have concluded from RF RA’s text and legislative history

that the statute was designed merely to restore the legal!

standard governing pre-existing free exercise rights

See, e.g., 5. Rep. No. 111, supra, at 12 (“|The purpose

of this act is only to overturn the oupreme Court's deci-

on in Smeth.”) (emphasis added); see also Flomda Pre

17

paid Postsecondary Educ. Expense Bd. v. College Sav.

Bank, 527 U.S. 627, 638 (1999) (“Through RFRA, Con-

gress reinstated the compelling governmental interest

test eschewed by Smith.”). Moreover, a reasonable offi-

cial would have been justified in relying on prior case

law establishing that aliens outside the United States in

general—and aliens at Guantanamo in particular—did

not enjoy First Amendment rights. See, e.g., Verdugo-

Urquidez, 494 U.S. at 265; Cuban Am. Bar Ass'n, 43

F.3d at 1429-1430."

2. The court of appeals’ holding that petitioners’

Bivens claims for alleged violations of the Fifth and

Eighth Amendments were correctly dismissed (Pet.

App. 36a-44a) does not warrant this Court’s review.

a. Petitioners argue (Pet. 25-26) that the court of

appeals’ holding is inconsistent with this Court’s subse-

quent decision in Boumediene v. Bush, 128 S. Ct. 2229

(2008). But Boumediene did not hold that all provisions

of the Constitution protect Guantanamo detainees. The

Certiorari is particularly unwarranted in light of the strength of

respondents’ argument that the nght was not clearly established at the

time they acted (an argument the court of appeals did not reach, see

Pet. App. 47a n.20). Regardless of whether this Court overturns the

requirement that lower courts conducting qualified-immunity analy

ist decule whether a legal right exists before deciding whether that

rit Vil clearly established il the re Vant time see fea

( 28> 702, 1702-17038 (2008) (No. 07-751; argued Oct. 14

08). this Cour it felt itself bour follow that framework, s¢

! Hea 3 US. 194, 198 1.8 (2004) (per curt: ithe

wt th ni rniutive pr or rejecting petitioners cluin \ist

n ent r denyviu ertiorari. ¢ idar

f } f I+ | U LO (20 per cur

Phi i t eview and not first vie vy M

A ( ATT S iy " (;inshy

18

Court held only that Guantanamo detainees have a pro-

cedural right under the Suspension Clause to file a ha-

beas petition and thus receive judicial review of “both

the cause for detention and the Executive’s power to

detain.” /d. at 2269. Moreover, Boumediene expressly

noted that it did not address any “claims of unlawful

conditions of treatment or confinement.” /d. at 2274."

Indeed, the Court explained that “(i]t bears repeating

that our opinion does not address the content of the law

that governs petitioners’ detention” (let alone their con-

ditions of confinement). /d. at 2277. Rather, “[(tjhat is

a matter yet to be determined,” because the Court

‘h[e]id” only “that petitioners may invoke the funda-

mental procedural protections of habeas corpus.” /bid

Thus, Boumediene did not overturn the Court’s prior

rulings that the individuai-rights provisions of the Con-

stitution run only to aliens who have a substantial con-

nection to our country and not to enemy combatants

who are detained abroad. In Johnson vy. Lisentrager,

339 U.S. 763 (1950), for instance, this Court had ad-

dressed whether aliens outside the sovereign territory

of the United States possess “substantive constitutional

rights” in general, 7d. at 781, and Fifth Amendment

rights in particular, id. at 781-785, and it held that they

Petitioners’ conter m (Pet. 26) that Boswonediene held that “the

substantive guarantees of the Fifth and Fourteenth Amendments”

apply to Guantanamo detainees is not supported by the passage thev

cite. In that nussare, the Court merely ackmne wledged hat separation

ot-powers doctrine, “hke the substantive guarantees of the Fifth and

lourteenth Amendments,” protects “persons as Well as citizens.” 128

S. Ct. at 2246. Iteited York Wov. Hopkins, 118 US. 456. 371 C1886), 4

case that involved aliens living in the United States. Accordingly. tha

eiblh

19

did not, id. at 784-785. Later decisions reaffirmed that

holding. See Verdugo-Urquidez, 494 U.S. at 269; Zad-

vydas v. Davis, 533 U.S. 678, 693 (2001) (“[i]t is well es-

tablished that certain constitutional protections avail-

able to persons inside the United States are unavailable

to aliens outside of our geographic borders”); Jifry, 370

F.3d at 1182; 32 County Sovereignty Comm. v. Depart-

ment of State, 292 F.3d 797, 799 (D.C. Cir. 2002). The

court of appeals’ decision remains correct following

Boumediene.

b. In any event, this case is not a proper vehicle for

determining the effect that Boumediene will have on

Fifth and Eighth Amendment claims because—regard-

less of how that issue is resolved—the court of appeais

correctly held, as an alternative basis for its decision,

that respondents are entitled to qualified immunity on

those claims because the applicability of the Fifth and

Eighth Amendments to Guantanamo detainees was too

unsettled at the time of petitioners’ detention. Pet. App.

41a (“Even assuming arguendo [petitioners] can assert

their Fifth and Eighth Amendment claims, those claims

are nonetheless subject to [respondents’] assertion of

qualified immunity.”). See note 8, supra.

At the time of petitioners’ detention (between 2002

and March 2004), it was, at a bare minimum, not clearly

established that the Fifth and Eighth Amendments pro-

tected aliens detained abroad by the military. To the

contrary, the case law uniformly held that aliens outside

the sovereign territory of the United States did not have

enforceable Fifth and Eighth Amendment rights. See

pp. 18-19, supra

Indeed, there were cases that specifically addressed

the /ack of constitutional rights for aliens at Guantan-

amo. The Eleventh Circuit had held that alien refugees

20

there had “no First Amendment or Fifth Amendment

rights.” Cuban Am. Bar Ass’n, 43 F.3d at 1428. Per-

haps most telling, the District of Columbia Circuit spe-

cifically concluded—during the period of petitioners’

detention—that the Fifth Amendment does not apply to

aliens held at Guantanamo. Al Odah v. United States,

321 F.3d 1134, 1140-1144 (2003), rev’d on other grounds

sub nom. Rasul v. Bush, 542 U.S. 466 (2004). Even after

this Court reversed A/ Odah on statutory grounds, see

Rasul, 542 U.S. at 476, district courts reached opposing

conclusions about whether Guantanamo detainees had

Fifth Amendment rights. See Boumediene, 128 S. Ct. at

2241 (describing district court opinions). In fact, more

than four years after petitioners were released from

United States custody, this Court recognized that “be-

fore today the Court has never held that noncitizens

detained by our Government in territory over which an-

other country maintains de jure sovereignty have any

rights under our Constitution.” /d. at 2262.

When “judges thus disagree on a constitutional ques

tion, it is unfair to subject [public employees] to money

damayes for picking the losing side of the controversy.”

Wilson v. Layne, 526 U.S. 608, 618 (1999). Accordingly,

the court of appeals was correct in concluding that a

reasonable officer would not have concluded that peti-

tioners possessed Fifth and Kighth Amendment rights

while they were detained at Guantanamo.

Petitioners assert (Pet. 31) that the court of appeals

“relied on the absence of any constitutional ruling di-

rectly on point” in holding that the law was not clearly

established. They further criticize (Pet. 33) the court of

appeals for “approachling]| the question of qualified im-

munity with a single, narrow question—was there a case

holding torture at Guantanamo violated specie provi

21

sions of the Constitution?” Although petitioners are

correct that the absence of a ruling directly on point

does not necessarily preclude a right from being clearly

established, their characterization of the court of ap-

peals’ decision as relying upon the absence of a ruling on

point is inaccurate. The court of appeals examined ex-

tensive authority that existed at the time of petitioners’

detention and correctly determined that “Supreme

Court and Circuit precedent, consistent with Eisentra

ger’s rejection of the proposition ‘that the Fifth Amend-

ment confers rights upon all persons, whatever their

nationality, wherever they are located and whatever

their offense,’ concluded that non-resident aliens enjoy

no constitutional rights.” Pet. App. 42a-48a (citing E2-

sentrager, 339 U.S. at 783; Verdugo-Urquidez, 494 U.S.

at 269; Jifry, 370 F.3d at 1182; People’s Mojahedin Org.,

182 F.3d at 22)."

Despite petitioners’ claims to the contrary (Pet. 31-

33), the court of appeals’ decision is also consistent with

Hope v. Pelzer, 536 U.S. 730 (2002), and United States

v. Lanier, 520 U.S. 259 (1997). Those cases recognized

that government officials can be on notice that their ac-

lions violate clearly established law “even in novel fac-

The court of appeals also discussed several relevant cases betore

concluding that “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.” Pet. App. 44a. To

the extent that this Court's later decision in Bowmedicne casts doubton

the earlter case law about places where the United States is not a pure

sovereign, it does not address the question here because Boronedien

held only that detainees have a procedural mght to habeus corpus, see

p. 1&8, supra, and Boumediene certainly provides no basis for denying

qualified immunity. [tis axiomatic that federal officials cannot be held

lable based on later developments in the law. See. eg, Anderson, 488

1) Sat O40

22

tual circumstances,” Hope, 536 U.S. at 741, or in a kind

of case with facts so extreme that the issue does not

“even arise” in other cases, Lanier, 520 U.S. at 271 (in-

ternal quotation marks and citation omitted). This is

not, however, such a case. As discussed above, several

cases had held that aliens outside the sovereign terri-

tory of the United States—specifically including aliens

at Guantanamo—did not possess several constitutional

rights. As a result, to establish that the law was really

the opposite would require an especially high degree of

factual particularity. Cf. ibid. (“[WJhen an earlier case

expressly leaves open whether a general rule applies to

the particular type of conduct at issue, a very high de-

gree of prior factual particularity may be necessary.”)

Finally, petitioners claim (Pet. 34-35) that respon-

dents “knew * * * that torture violated U.S. criminal

and military law” or that torture had been held “uncon-

stitutional when it occurred in U.S. prisons.” But those

allegations of the complaint (which the government does

not concede) are insufficient to show that the constitu-

tronal rights that petitioners assert were clearly estab-

lished. As this Court has made clear, qualified immunity

applies unless it is cleariv established that the defen

dant’s alleged actions violate the same right that pro

vides the basis for the plaintiff’s claim. See Davis \

Scherer, 468 U.S. 183, 194 n.12 (1984) (“| O]fficials sued

for violations of rights conferred by a statute or regula-

tion, like officials sued for violation of constitutional

rights, do not forfeit their immunity by violating some

oter statute or regulation.”); :bid. (“Neither tederal

nor state officials lose their immunity by violating the

clear command of a statute or reyulation—ol federal or

of state law—unless that statute or regulation provides

the basis for the CuUSse of actior sued tL) po? , - See aisy

23

Elder v. Holloway, 510 U.S. 510, 515 (1994) (to defeat

immunity, “the clearly established right” must be “the

federal right on which the claim for relief is based”).

Here, petitioners base their claim on violations of the

Fifth and Eighth Amendments as they apply to aliens in

Guantanamo, and thus must show that those rights (not

any other statutory or constitutional rights) were clearly

established."

Because petitioners cannot make that showing, re-

spondents are entitled to qualified immunity even if the

court of appeals erred in holding that petitioners lacked

enforceable rights under the Fifth and Eighth Amend-

ments.

e. Further review is also inappropriate because peti-

tioners’ constitutional claims should be barred for an

independent reason. As respondents argued in the court

of appeals (Gov’t C.A. Br. 35-40) and as Judge Brown

determined in her concurring opinion (Pet. App. 55a-

58a), even assuming that the conditions of petitioners’

detention at Guantanamo were governed by the Fifth

and Eighth Amendments, special factors counsel against

recognizing a Bivens remedy in this context. See Wilkie

" Petitioners rely (Pet. 32) on the discussion in Hope of an Alabama

Departiment of Corrections regulation. But Hope did not use one form

of illegality to establish a different one. Instead, the Court found that

the Eighth Amendment right not to be subjected to a certain punish

ment was clearly established by “Icleventh Circuit precedent” that

addressed the Eighth Amendment question and a Department of

Justice report that also addressed the constitutional question. 536 U.S.

at 745-746. ‘The pnson regulation was discussed because It authonzed

the punishment in question only under conditions that were “analogous

to the practice upheld” in the key Eleventh Circuit case, and because

the violation of the regulation meant that the punishment had been

iniplemented ina Way that the Eleventh Cireuit had previously “de-

scribed as impermissible” under the Eqgrhth Amendment. /d. at 744

24

v. Robbins, 127 S. Ct. 2588, 2598 (2007) (noting that even

if there is no alternative damages remedy available to a

putative Bivens plaintiff, the courts must “pay[] particu-

lar heed * * * to any special factors counselling hesita-

tion before authorizing a new kind of federal litigation”’)

(quoting Bush v. Lucas, 462 U.S. 367, 378 (1983)). This

Court has already suggested that such a limitation on

Bivens remedies would be appropriate if the Fourth

Amendment were held to govern actions that the mili-

tary took against aliens abroad. See Verdugo-Urquidez,

494 U.S. at 273-274. And the District of Columbia Cir-

cuit has previously held that no damages remedy should

be available “against military and foreign policy officials

for allegedly unconstitutional treatment of foreign sub-

jects causing injury abroad.” Sanchez-Espinoza v. Rea-

gan, 770 F.2d 202, 209 (1985).

3. The court of appeals’ holding—based on District

of Columbia tort law—that petitioners’ claims under the

ATS and the Geneva Conventions must be brought, if at

all, against the United States under the FTCA (Pet.

App. 15a-35a) does not warrant further review.

Under the Westfall Act, 28 U.S.C. 2679(b)(1), claims

against federal employees for allegedly tortious acts

done within the scope of their employment must pro-

ceed exclusively against the United States under the

FTCA. See United States v. Smith, 499 U.S. 160, 163

(1991). The scope of employment is determined by ret-

erence to local respondeat superior law. Haddon v.

United States, 68 F.3d 1420, 1422-1423 (D.C. Cir. 1995).

Petitioners have not contested the lower courts’ selec-

tion of the Distriet of Columbia as the relevant locality

here. Pet. App. 18a, 114a.

As in the coue of appeals (see Pet. App. 20a-21a),

petitioners challenge only one component of the scope-

25

of-employment test under District of Columbia lav

whether the acts in question are “incidental” to an em-

ployee’s duties, and thus “of the kind [the employee] is

employed to perform.” Restatement (Second) of Agency

§ 228(1) (1958); see Stokes v. Cross, 327 F.3d 1210, 1215

(D.C. Cir. 2003) (explaining that “District of Columbia

law * * * looks to the Restatement (Second) of Agency

(1958) in defining scope of employment”).

Petitioners contend (Pet. 36) that “|tlorture is not

incidental to military operations.” They cite court of

appeals cases holding that torture is illegal and criminal

(both in this country and abroad), see Nwru v. Gonzales,

404 F.3d 1207, 1222-1223 (9th Cir. 2005); Filartiga v.

Pena-lrala, 630 F.2d 876, 884 (2d Cir. 1980); Khouzam

v. Hogan, 529 F. Supp. 2d 543, 552 (M.D. Pa. 2008), o1

that, in specific circumstances, acts of torture were not

attributable to a foreign agency or instrumentality for

purposes of the Foreign Sovereign Immunities Act of

1976, 28 U.S.C. 1602 et seqg., see In re Estate of Marcos

Human Rights Litig., 25 F.3d 1467, 1472 (9th Cir. 1994),

cert. denied, 513 U.S. 1126 (1995); Zuncazx v. Gramajo,

886 F. Supp. 162, 175-176 & n.10 (D. Mass. 1995). Peti-

tioners do not, however, account for the case law ex-

plaining what conduct is within the scope of employ-

ment.

Under the District of Columbia law of respondeat

superior, the fact that an act is illegal or otherwise a

crime does not necessarily mean that it is outside the

scope of employment, because the focus of the inquiry is

not “the nature of the tort,” but whether the “underlying

dispute or controversy” was “originally undertaken on

the employer's behalf.” Council on Am. Islamic Rela-

tions Vv. Ballenger, 444 F.3d 639, 664 (D.C. Cir. 2006)

(quoting Weinbera v. Johnson, 518 Aa 2d 985, 992 (D.C.

26

1986)); see Pet. App. 23a, 25a-26a. In other words,

“{cJonduct is ‘incidental’ to an employee’s legitimate du-

ties” if it is “a direct outgrowth of the employee’s in-

structions or job assignment.” Haddon, 68 F.3d at 1424

(citation omitted). Thus, as the court of appeals dis-

cussed (Pet. App. 23a-24a), cases applying the relevant

standard under District of Columbia law have held that

employees were acting within the scope of their employ-

ment when they defamed political opponents or raped

and shot their customers, because the underlying dis-

putes grew out of the employees’ duties. See Ballenger,

444 F.3d at 664-665 (Congressman’s allegedly defama-

tory statements held to be incidental to his office); Lyon

v. Carey, 533 F.2d 649 (D.C. Cir. 1976) (deliveryman’s

assault and rape of customer held to be within scope of

employment); Johnson v. Weinberg, 434 A.2d 404, 409

(D.C. 1981) (laundromat worker’s shooting of customer

held to be within scope of employment).

Here, petitioners cannot deny that the conduct they

challenge grew out of a dispute related to respondents’

official functions. Indeed, their complaint expressly

alleged that respondents were motivated by a desire to

serve their employer in the course of their job duties

(i.e., that they took action designed to elicit information

about terrorism during interrogations).’” Pet. App.

168a-169a, 208a; see Balienger, 444 F.3d at 665 (“even a

partial desire to serve the master is sufficient”). Re-

spondents had specific responsibilities related to the

By the same token, any suggestion (Pet. 35) that the court of

appeals erred in holding that petitioners’ alleged mistreatment was

“foreseeable” cannot be reconciled with their allegation that the mis

treatrment was the result of “deliberate and foreseeable action” rather

than “isolated or rogue actions.” Pet. App. 16Sa; see alse Pet. 23 24

27

custody and interrogation of detainees.'’ Pet. App.

174a-178a. Petitioners cite no case suggesting that

those whose jobs include interrogation and custody act

outside the scope of their employment when they mis-

treat a detainee during an interrogation (any more than

a deliveryman acts outside the scope of employment un-

der District of Columbia law by raping a customer).

Moreover, petitioners’ reliance (Pet. 36-37) on a Depart-

ment of State report, which states in its discussion of the

Uniform Code of Military Justice that torture is not

within the “scope” of a commanding officer’s position

(Pet. App. 231a), is inapposite because it does not ad-

dress the common law standard for determining the

scope of employment in the relevant jurisdiction—here,

the District of Columbia.

Finally, petitioners argue (Pet. 35-36) that the court

of appeals’ holding based on District of Columbia re-

spondeat superior law effectively endorsed the “repel-

lent proposition” that torture is an acceptable incident

of interrogation. That reflects a misunderstanding of

the Westfall Act. “Defining an employee’s scope of em-

ployment is not a judgment about whether alleged con-

duct is deleterious or actionable; rather, this procedure

merely determines who may be held liable for that con-

duct, an emplovee or his bess.” Schneider v. Kissinger,

310 F. Supp. 2d 251, 265 (D.D.C. 2004), aff'd, 412 F.3d

190 (D.C. Cir. 2005), cert. denied, 547 U.S. 1069 (2006).

The language of the Westfall Act covers claims alleging

“wrongful” acts within the scope of employment, and

makes no exception for acts that are not just wrongful

' One respondent allegedly proviced a legal opinion purporting to

justify mistreatment of detainees us part of her job as a Chief Legal

Advisor. Pet. App. 178a-179a_. Providing a legal opinion is exactly the

“kind” of task a legal advisor is employed to perform.

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but also illegal or repellent. 28 U.S.C. 2679(b)(1). As

one court observed in a related context, “if the scope of

an official’s authority or line of duty were viewed as co-

extensive with the official’s lawful conduct, then immu-

nity would be available only where it is not needed.”

Ramey v. Bowsher, 915 F.2d 731, 734 (D.C. Cir. 1990)

(internal quotation marks and citation omitted). That is

no less true when an employee claims immunity from

suit under the Westfall Act because the plaintiff’s sole

recourse lies against the United States under the FTCA.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE

Solicitor General

GREGORY G. KATSAS

Assistant Attorney General

JONATHAN F. COHN

Deputy Assistant Attorney

General

ROBERT M. LOEB

MATTHEW M. COLLETTE

Attorneys

NOVEMBER 2008