United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 6, 2011 Decided February 21, 2012

No. 10-5393

TALAL AL-ZAHRANI AND NASHWAN ALI ABDULLAH

AL-SALAMI,

APPELLANTS

v.

ESTEBAN RODRIGUEZ, DIRECTOR, JOINT INTELLIGENCE

GROUP, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:09-cv-00028)

Pardiss Kebriaei argued the cause for appellants. With her

on the briefs were Gitanjali S. Gutierrez, Shayana D. Kadidal,

and William Goodman.

Robert M. Loeb, Attorney, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were Tony

West, Assistant Attorney General, and Barbara L. Herwig,

Attorney. 

Before: SENTELLE, Chief Judge, WILLIAMS and RANDOLPH,

Senior Circuit Judges.
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Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge: Appellants Talal Al-Zahrani and

Ali Abdullah Ahmed Al-Salami, as representatives of the estates

of their deceased sons, brought this action against federal

officials and employees in district court seeking money damages

relating to the alleged mistreatment and eventual death of those

sons while they were detained at Guantanamo Bay Naval Base,

Cuba. The district court granted the motion of the United States

to be substituted as defendant and the motion of the United

States for dismissal of the claims. Following the district court’s

denial of appellants’ motion for reconsideration, they brought

the current appeal.1

 Because we are satisfied that neither the

district court nor this court has jurisdiction over the subject

matter of this action due to the jurisdictional bar created by

§ 7(a) of the Military Commissions Act (MCA), codified at 28

U.S.C. § 2241(e), we affirm the judgment of dismissal, although

on different grounds than those relied upon by the district court.

Background

Factual History

While the parties are in disagreement over the precise

events that led to the deaths of appellants’ decedents, much of

the general background is undisputed. Beginning in January of

2002, Yasser Al-Zahrani, Jr., a citizen of Saudi Arabia, and

Salah Ali Abdullah Ahmed Al-Salami, Jr., a citizen of Yemen,

were detained at the United States military base at Guantanamo

Bay, Cuba, as “enemy combatants.” In 2004, under the thencurrent procedure of the United States military, Combatant

Status Review Tribunals reviewed the detention of the two and

1

While the appeal was pending, Nashwan Al-Salami, AlSalami’s brother, was substituted for his father.
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confirmed the earlier determination that both detainees were

enemy combatants. On June 10 of 2006, both men, along with

a third detainee, died. Although the cause of death is the subject

of dispute in the current litigation, a Naval Criminal

Investigative Service report concluded that the deaths were the

result of suicide by hanging. 

On January 7, 2009, the plaintiffs, as fathers of the two

named decedents, filed an action against the United States,

twenty-four named, current, or former officials of the United

States, and one hundred unnamed “John Doe” officials of the

United States, seeking money damages relating to the deaths of

the two detainees and alleging that the defendants had subjected

the decedents to torture, arbitrary detention, and ultimately,

wrongful death. The defendants moved for the dismissal of

plaintiffs’ by-then amended complaint. The district court

dismissed the complaint pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure for failure to state a claim upon which

relief could be granted.

For the reasons more fully set forth below, we affirm the

judgment of dismissal, although we further hold that the

dismissal is for a lack of jurisdiction rather than the failure to

state a claim for relief.

Analysis

Federal courts are courts of limited subject-matter

jurisdiction. A federal court created by Congress pursuant to

Article III of the Constitution has the power to decide only those

cases over which Congress grants jurisdiction. Micei Int’l v.

Dep’t of Commerce, 613 F.3d 1147, 1151 (D.C. Cir. 2010). As

a federal appellate court, we have a “special obligation” to

satisfy ourselves of our own jurisdiction and that of the lower

court whose decision we are reviewing, even if the parties (and
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the district court) are willing to assume it. Bender v.

Willamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). 

Congress has expressly deprived the federal courts of

jurisdiction over cases like the one before us.

Specifically, plaintiffs filed a multi-count complaint as

representatives of the estates of their relatives against the United

States and “a host of government officials” alleging claims

under the Alien Tort Statute, 28 U.S.C. § 1350 (2006); the

Federal Torts Claims Act, 28 U.S.C. §§ 2671-2680; and the

Fifth and Eighth Amendments to the United States Constitution. 

See Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 105 (D.D.C.

2010). The United States moved to substitute itself as defendant

in the tort claims under the Westfall Act, 28 U.S.C. § 2679,

which provides for the exclusivity of remedy against the United

States under the Federal Torts Claims Act and thereby

establishes immunity from individual liability on the part “of

any employee of the Government while acting within the scope

of his office or employment . . . .” Section 2679(b)(1).

All defendants moved for dismissal of all claims for the

failure of the complaint to state a claim within the jurisdiction

of the United States District Court, asserting both a lack of

jurisdiction and a failure of the pleadings to state a claim. The

District Court, while recognizing that the “plain language of [28

U.S.C. § 2241(e)(2)] precludes jurisdiction over claims by aliens

who ‘ha[ve] been determined’ to be enemy combatants by the

United States,” decided to avoid the constitutional implications

it saw in the jurisdictional question and instead reached the

merits of the complaint and entered a dismissal under Rule

12(b)(6). Al-Zahrani, 684 F. Supp. 2d at 110. Plaintiffs

appealed. For the reasons set forth below, while we agree with

the District Court that the case must be dismissed, we do so on

jurisdictional rather than merits-related grounds.
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A.

As we stated above, the federal courts are courts of limited

subject-matter jurisdiction. For a case or controversy to fall

within the authority of an inferior court created under Article III

of the Constitution, the Constitution must have supplied to the

courts the capacity to take the subject matter and an Act of

Congress must have supplied jurisdiction over it. See Micei Int’l

v. Dep’t of Commerce, 613 F.3d 1147, and authorities discussed

therein. Because a federal court without jurisdiction cannot

perform a law-declaring function in a controversy, “the Supreme

Court [has] held ‘that Article III jurisdiction is always an

antecedent question’ to be answered prior to any merits inquiry.” 

Public Citizen v. U.S. District Court for the District of

Columbia, 486 F.3d 1342, 1346 (D.C. Cir. 2007) (quoting Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)). 

Therefore, rather than proceed to weigh the adequacy of the

complaint to state a claim, as did the District Court, we first

examine the jurisdiction of the courts to entertain plaintiffs’

claims and find that jurisdiction wanting.

In October of 2006, Congress enacted the Military

Commissions Act. Section 7 of the MCA included an

amendment to the habeas corpus statute. The amended statute

reads:

(1) No court, justice, or judge shall have jurisdiction to hear

or consider an application for a writ of habeas corpus filed

by or on behalf of an alien detained by the United States

who has been determined by the United States to have been

properly detained as an enemy combatant or is awaiting

such determination.

(2) Except as provided in [section 1005(e)(2) and (e)(3) of

the Detainee Treatment Act of 2005], no court, justice, or
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judge shall have jurisdiction to hear or consider any other

action against the United States or its agents relating to any

aspect of the detention, transfer, treatment, trial, or

conditions of confinement of an alien who is or was

detained by the United States and has been determined by

the United States to have been properly detained as an

enemy combatant or is awaiting such determination.

28 U.S.C. § 2241(e)(1) and (2). 

The present litigation rather plainly constitutes an action

other than habeas corpus brought against the United States and

its agents relating to “aspect[s] of the detention . . . treatment . . .

[and] conditions of confinement of an alien” as described in the

MCA. Therefore, as the District Court noted, this action is

excluded from the jurisdiction of this court by the “plain

language” of an Act of Congress. This ends the litigation and

requires that we affirm the dismissal of the action.

We have previously held in Boumediene v. Bush, 476 F.3d

981 (D.C. Cir. 2007), that the Act means what it says. It is true

that the Supreme Court, in its review of our decision in

Boumediene, found § 7 of the MCA to be constitutionally

defective. Boumediene v. Bush, 553 U.S. 723, 787-92 (2008). 

However, the Boumediene appeal involved a decision applying

the first subsection of § 7 governing and barring the hearing of

applications for writs of habeas corpus filed by detained aliens. 

The Supreme Court’s conclusion that the statute

unconstitutionally stripped the courts of jurisdiction to review

habeas corpus petitions relied on the Suspension Clause of the

Constitution: “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. 

Subsection 2 of the MCA, which governs and bars the present

litigation, has no effect on habeas jurisdiction. The Suspension
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Clause is not relevant and does not affect the constitutionality of

the statute as applied in “treatment” cases. We have said as

much already. In Kiyemba v. Obama, 561 F.3d 509, 512 n.1

(D.C. Cir. 2009), we noted that the Supreme Court’s reference

to § 7 in Boumediene did not specify a particular subsection of

28 U.S.C. § 2241(e), “but its discussion of the Suspension

Clause clearly indicates it was referring only to that part of § 7

codified at § 2241(e)(1).” We reiterate our reasoning from

Kiyemba. In that case, we recognized that the Supreme Court’s

decision in Boumediene had stricken the bar to federal court

jurisdiction over habeas claims, but as we noted above, further

recognized that the reasoning of the Supreme Court applied only

to the stripping of habeas jurisdiction. “[O]rdinarily a court

should invalidate as little of an unconstitutional statute as

necessary to bring it into conformity with the Constitution.” 

Kiyemba, 561 F.3d at 512. We therefore presume that the

Supreme Court used a scalpel and not a bludgeon in dissecting

§ 7 of the MCA, and we uphold the continuing applicability of

the bar to our jurisdiction over “treatment” cases.

B.

Appellants argue that § 2241(e)(2)’s jurisdictional bar is

unconstitutional because it fails to provide a proper remedy for

violations of their constitutional rights. But the only remedy

they seek is money damages, and, as the government rightly

argues, such remedies are not constitutionally required. The

Supreme Court has made this eminently clear in its

jurisprudence finding certain of such claims barred by common

law or statutory immunities, and applying its “special factors”

analysis in preclusion of Bivens claims. See Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388, 392 (1971); see also Hui v. Castaneda, 130 S. Ct. 1845,

1852 (2010); Harlow v. Fitzgerald, 457 U.S. 800, 816-17

(1982); Chappell v. Wallace, 462 U.S. 296, 304 (1983). Further,
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the Court applies that analysis to preclude Bivens claims even in

cases such as the present one, where damages are the sole

remedy by which the rights of plaintiffs and their decedents

might be vindicated. For example, in United States v. Stanley,

the Court refused to create a Bivens cause of action for a military

serviceman who had been secretly administered doses of LSD;

in doing so, the Court noted that it was “irrelevant to [the

analysis] whether the laws currently on the books afford Stanley

. . . an ‘adequate’ federal remedy for his injuries.” 483 U.S. 669,

683 (1987); see also id. at 690 (Brennan, J., concurring in part

and dissenting in part) (noting that the Court’s decision had

deprived plaintiffs like Stanley of their only effective remedy,

because “for these victims, ‘it is damages or nothing.’” (quoting

Bivens, 403 U.S. at 410 (Harlan, J., concurring))). As we have

recently said, “Not every violation of a right yields a remedy,

even when the right is constitutional.” Kiyemba v. Obama, 555

F.3d 1022, 1027 (D.C. Cir. 2009), reinstated as amended by

Kiyemba v. Obama, 605 F.3d 1046 (D.C. Cir. 2010). In light of

this, we see no basis on which to invalidate Congress’s decision

to foreclose such claims as plaintiffs’.

Conclusion

For the reasons set forth above, we hold that 28 U.S.C.

§ 2241(e)(2) deprives this court of jurisdiction over appellants’

claims. We further hold that the Supreme Court did not declare

§ 2241(e)(2) unconstitutional in Boumediene and the provision

retains vitality to bar those claims. We therefore conclude that

the decision of the District Court dismissing the claims should

be affirmed, although for a lack of jurisdiction under Rule

12(b)(1) rather than for failure to state a claim under Rule

12(b)(6).

It is so ordered.