Adel Hamad v. Robert Gates , 732 F.3d 990 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADEL HASSAN HAMAD, Nos. 12-35395
Plaintiff-Appellant – 12-35489
Cross-Appellee,
D.C. No.
v. 2:10-cv-00591-
MJP
ROBERT M. GATES, in his
individual capacity; DONALD
H. RUMSFELD, in his OPINION
individual capacity; PAUL
WOLFOWITZ, in his individual
capacity; GORDON R.
ENGLAND, in his individual
capacity; JAMES M.
MCGARRAH, in his individual
capacity; RICHARD BOWMAN
MYERS, in his individual
capacity; PETER PACE, in his
individual capacity; MICHAEL
GLENN MULLEN, in his
individual capacity, AKA
Mike Mullen; JAMES T. HILL,
in his individual capacity;
BANTZ J. CRADDOCK, in his
individual capacity;
GEOFFREY D. MILLER, in his
individual capacity; JAY
HOOD, in his individual
capacity; HARRY B. HARRIS,
2 HAMAD V. GATES
JR., in his individual capacity;
MARK H. BUZBY, in his
individual capacity; ADOLPH
MCQUEEN, in his individual
capacity; NELSON CANNON,
in his individual capacity;
MICHAEL BUMGARNER, in his
individual capacity, AKA
Mike Bumgarner; WADE
DENNIS, in his individual
capacity; BRUCE VARGO, in
his individual capacity;
ESTABAN RODRIGUEZ, in his
individual capacity, AKA
Stephen Rodriguez, AKA
Steve Rodriguez; DANIEL K.
MCNEILL, in his individual
capacity; GREGORY J. IHDE,
in his individual capacity;
JOHN DOES 1-100, in their
individual capacities; UNITED
STATES OF AMERICA,
Defendants-Appellees –
Cross-Appellants.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief District Judge, Presiding
Argued and Submitted
June 3, 2013—Seattle, Washington
HAMAD V. GATES 3
Filed October 7, 2013
Before: Arthur L. Alarcón, M. Margaret McKeown,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Ikuta
SUMMARY*
Subject Matter Jurisdiction
The panel held that 28 U.S.C. § 2241(e)(2) deprived the
district court of subject matter jurisdiction over the claims of
Adel Hassan Hamad, who was detained at Guantanamo Bay
as an enemy combatant, and vacated the district court’s order
dismissing Hamad’s claims seeking damages from former
Secretary of Defense Robert Gates and other military and
civilian officials.
The panel held that the plain language of § 2241(e)(2)
clearly applied to Hamad’s claims. The panel held that the
Supreme Court’s decision in Boumediene v. Bush, 553 U.S.
723 (2008), did not address § 2241(e)(2), and therefore did
not strike it down. The panel further held that in striking
down § 2241(e)(1) in Boumediene, the Supreme Court did not
necessarily strike down § 2241(e)(2), which is severable from
§ 2241(e)(1), and which remained in effect, provided it was
constitutional. Finally, the panel held that § 2241(e)(2) was
constitutional as applied to Hamad because: § 2241(e)(2)
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 HAMAD V. GATES
was not unconstitutional as applied to Hamad’s money
damages; § 2241(e)(2) was not a bill of attainder because it
did not inflict legislative punishment; and § 2241(e)(2) did
not violate the equal protection component of the Due
Process Clause of the Fifth Amendment.
COUNSEL
Gwynne Skinner (argued), Williamette University College of
Law, Salem, Oregon; Paul Hoffman (argued), Schonbrun De
Simone Seplow Harris Hoffman & Harrison LLP, Venice,
California, for Plaintiff-Appellant/Cross-Appellee.
Stuart F. Delery, Acting Assistant Attorney General; Jenny
Durkan, United States Attorney; Robert M. Loeb and Sydney
Foster (argued), Attorneys, Appellate Staff, Civil Division,
United States Department of Justice, Washington D.C., for
Defendant-Appellees/Cross-Appellants.
HAMAD V. GATES 5
OPINION
IKUTA, Circuit Judge:
Adel Hassan Hamad was detained at Guantanamo Bay as
an enemy combatant. He seeks damages for his detention and
his treatment from former Secretary of Defense Robert Gates
and numerous other military and civilian officials. We
conclude, however, that 28 U.S.C. § 2241(e)(2) deprived the
district court of subject-matter jurisdiction over Hamad’s
claims.
I
Hamad, a citizen of Sudan, alleges that he was detained
in Pakistan in 2002 by Pakistani security forces acting under
the direction of an “unknown American official.” According
to Hamad, he was transferred to United States military
custody and detained, first at Bagram Airfield in Afghanistan,
and then at Guantanamo Bay.
In July 2004, the Department of Defense established
Combatant Status Review Tribunals (CSRTs) to determine
whether foreign nationals held at Guantanamo Bay qualified
for detention as “enemy combatants.” Boumediene v. Bush,
553 U.S. 723, 733 (2008); Memorandum from Deputy
Secretary of Defense Paul Wolfowitz re Order Establishing
Combatant Status Review Tribunal § a (July 7, 2004),
available at http://www.defense.gov/news/Jul2004/
d20040707review.pdf (Wolfowitz Memo.). The Department
of Defense defined the term “enemy combatant” as “‘an
individual who was part of or supporting Taliban or al Qaeda
forces, or associated forces that are engaged in hostilities
against the United States or its coalition partners.’” Hamdan
6 HAMAD V. GATES
v. Rumsfeld, 548 U.S. 557, 570 n.1 (2006) (quoting
Wolfowitz Memo. at 1). A CSRT determined in March 2005
that Hamad was an enemy combatant. The United States has
not rescinded this designation.
In addition to establishing the CSRT procedure, the
Department of Defense established Administrative Review
Boards (ARBs) to “determine annually if enemy combatants
detained . . . [at] Guantanamo Bay, Cuba should be released,
transferred or continue to be detained” based on an
assessment of various factors, including the continued threat
posed by each detainee. Memorandum from Deputy
Secretary of Defense Gordon England re Revised
Implementation of Administrative Review Procedures § 1,
Enclosure 3 § 1 (July 14, 2006), available at
http://www.defense.gov/news/Aug2006/d20060809arbproc
eduresmemo.pdf (England Memo.); see also Boumediene,
553 U.S. at 821 (Roberts, C.J., dissenting) (describing the
ARB process). ARBs were required to issue
recommendations as to whether to (1) “[r]elease the enemy
combatant without limitations” to another country; (2)
“[t]ransfer the enemy combatant to . . . [another country] with
conditions agreed upon between that [country] and the United
States”; or (3) “[c]ontinue to detain the enemy combatant.”
See England Memo., Enclosure 3 § 1.
In November 2005, an ARB panel determined that Hamad
continued to be a threat to the United States and its allies, but
also decided that he was eligible to be transferred to Sudan.
As a result, in 2007, after the United States concluded
HAMAD V. GATES 7
negotiations with Sudan, Hamad was transferred to that
country.1
In April 2010, Hamad filed an action for money damages
in a federal district court in Washington State against twenty-
two United States military and civilian government officials,
including former United States Secretary of Defense Robert
Gates,2 and one hundred unnamed federal officials, all in their
individual capacities. In his complaint, Hamad raised six
claims under state common law and the Alien Tort Statute,
28 U.S.C. § 1350. These six claims alleged violations of
customary international law and the Geneva Conventions,
including (1) prolonged arbitrary detention, (2) cruel,
inhuman, or degrading treatment, (3) torture, (4) targeting of
a civilian, (5) denial of due process, and (6) forced
disappearance. In addition to these six claims, Hamad’s
seventh claim alleged a violation of his Fifth Amendment due
process rights. Hamad’s claims are premised on his
allegations that he was wrongfully detained and subjected to
torture and other forms of cruel treatment. He contends that
the CSRT erred in determining that he was an enemy
combatant, and that the United States government detained
him unlawfully for over two years after the ARB decided to
transfer him.
1
The ARB decision was heavily redacted and the explanation and
reasoning for the panel’s decision is blacked out. In addition, the record
does not contain the transfer agreement between the United States and
Sudan.
2
Gates became Secretary of Defense in December 2006. Because
Hamad was transferred from Guantanamo in December 2007, Gates’s
tenure as Secretary overlapped with Hamad’s detention at Guantanamo for
one year.
8 HAMAD V. GATES
The district court dismissed all defendants other than
Gates for lack of personal jurisdiction. With respect to
Hamad’s six international law claims against Gates, the
district court granted the government’s motion to substitute
itself for Gates under the Westfall Act, 28 U.S.C.
§ 2679(d)(1). Because the district court concluded that the
government had not waived its sovereign immunity for these
international law claims, see id. §§ 2679(b)(1), 2680(k), it
dismissed them. With respect to Hamad’s sole remaining
claim, a Fifth Amendment claim against Gates, the district
court held that it had subject matter jurisdiction over this
claim, but dismissed it because the complaint did not
plausibly allege that Gates was personally involved in
violating Hamad’s rights. Hamad timely appealed and the
government cross appealed.
II
This appeal requires us to address a key threshold
question: whether the district court had jurisdiction over the
subject matter of this action, given the jurisdiction-stripping
provisions in 28 U.S.C. § 2241(e). This section provides:
(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 paragraphs (2) and
(3) of section 1005(e) of the Detainee
HAMAD V. GATES 9
Treatment Act of 2005 (10 U.S.C. 801 note),
no court, justice, or 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).
“The existence of subject matter jurisdiction is a question
of law that we review de novo.” Marin Gen. Hosp. v.
Modesto & Empire Traction Co., 581 F.3d 941, 944 (9th Cir.
2009).
A
Looking to the plain language of § 2241(e)(2), it is clear
that this provision applies to Hamad’s claims, and that, as a
result, “no court, justice, or judge” has authority to hear
Hamad’s action. Under § 2241(e)(2), courts lack jurisdiction
over an action that meets the following five requirements:
(1) the action is against the “United States or its agents”;
(2) the action relates 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”; (3) the action relates
to an alien who was “determined by the United States to have
been properly detained as an enemy combatant” or an alien
awaiting such a determination; (4) the action is an action
“other” than an application for a writ of habeas corpus, which
10 HAMAD V. GATES
is covered in § 2241(e)(1); and (5) the action does not qualify
for an exception under § 1005(e)(2) or (3) of the Detainee
Treatment Act of 2005 (DTA), which provide the D.C.
Circuit jurisdiction over a narrow class of challenges by
enemy combatants, see Detainee Treatment Act of 2005, Pub.
L. No. 109-148, div. A, title X, § 1005(e), 119 Stat. 2680,
2740–44.
Hamad’s action meets each of these requirements. It is
“against the United States or its agents” and relates to aspects
of Hamad’s “detention” and “treatment” (the first and second
requirements), because Hamad is seeking damages from
United States military and civilian officers for his detention
and treatment at Guantanamo. Hamad’s action satisfies the
third requirement, because there is no dispute that a CSRT
determined that Hamad was properly detained as an enemy
combatant. It also meets the fourth requirement, because
Hamad is not seeking a writ of habeas corpus. Finally,
Hamad’s claims do not fall into the narrow exception granted
by § 2241(e)(2) for suits under § 1005(e)(2) or (3) of the
DTA, which authorize limited D.C. Circuit review. Therefore
Hamad’s action also satisfies the fifth requirement.
B
Although § 2241(e)(2) applies by its terms, Hamad
contends that, in light of Supreme Court precedent and
constitutional concerns, we may not apply § 2241(e)(2) to his
action. He makes three arguments. First, he asserts that
Boumediene struck down the whole of § 2241(e), including
§ 2241(e)(2). Second, he asserts that, even if Boumediene
struck down only § 2241(e)(1), § 2241(e)(2) cannot be
severed from (e)(1) and so both must fall together. Finally,
HAMAD V. GATES 11
he asserts that, even if § 2241(e)(2) survived Boumediene, it
is unconstitutional as applied to him.
In order to analyze these arguments, we must first review
the complex historical context which forms their backdrop.
1
“On September 11, 2001, the al Qaeda terrorist network
used hijacked commercial airliners to attack prominent
targets in the United States.” Hamdi v. Rumsfeld, 542 U.S.
507, 510 (2004). In response, Congress authorized the
President to use “all necessary and appropriate force against
those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks
. . . , or harbored such organizations or persons.”
Authorization for Use of Military Force of 2001, Pub. L.
107-40, § 2, 115 Stat. 224, 224. “In Hamdi . . . five Members
of the Court recognized that detention of individuals who
fought against the United States in Afghanistan for the
duration of the particular conflict in which they were
captured, is so fundamental and accepted an incident to war
as to be an exercise of the necessary and appropriate force
Congress has authorized the President to use.” Boumediene,
553 U.S. at 733 (internal quotation marks omitted). On the
same day it issued its opinion in Hamdi, the Supreme Court
also issued Rasul v. Bush, which held that federal courts had
jurisdiction under the then-effective version of the habeas
statute, 28 U.S.C. § 2241, “to hear [Guantanamo detainees’]
habeas corpus challenges to the legality of their detention at
the Guantanamo Bay Naval Base.” 542 U.S. 466, 484 (2004).
Taken together, Hamdi and Rasul established that the
President had the authority to detain individuals pursuant to
the Authorization for Use of Military Force, but that detainees
12 HAMAD V. GATES
held at Guantanamo Bay had a statutory right to file habeas
petitions in federal court to challenge their detention.
Shortly after the Supreme Court decided Hamdi and
Rasul, the Department of Defense “established Combatant
Status Review Tribunals (CSRTs) to determine whether
individuals detained at Guantanamo were ‘enemy
combatants,’ as the Department define[d] that term.”
Boumediene, 553 U.S. at 733. The Department of Defense
defined “enemy combatant” as “an individual who was part
of or supporting Taliban or al Qaeda forces, or associated
forces that are engaged in hostilities against the United States
or its coalition partners.” Hamdan, 548 U.S. at 570 n.1.
(internal quotation marks omitted).
In 2005, Congress responded to the Supreme Court’s
decision in Rasul, as well as the Executive’s decision to
establish Combatant Status Review Tribunals, by enacting the
Detainee Treatment Act of 2005 (DTA), Pub. L. No. 109-148,
div. A, title X, 119 Stat. 2680, 2739–44. In direct response to
Rasul’s holding that § 2241 gave federal courts jurisdiction
to hear habeas petitions by Guantanamo detainees, the DTA
amended § 2241 to include a new subsection, § 2241(e),
which limited the jurisdiction of the courts to entertain suits
by Guantanamo detainees.3 See DTA § 1005(e)(1).
3
Section 1005(e)(1) of the DTA provides:
In General—Section 2241 of title 28, United States
Code, is amended by adding at the end the following:
(e) Except as provided in section 1005 of the
Detainee Treatment Act of 2005, no court, justice,
or judge shall have jurisdiction to hear or
consider—
HAMAD V. GATES 13
Specifically, this amendment to 28 U.S.C. § 2241 imposed
two additional jurisdictional limitations: first, “no court,
justice, or judge” could entertain “an application for a writ of
habeas corpus filed by” a Guantanamo detainee; and second,
no court could entertain “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.”
Id.
Congress provided two exceptions to this jurisdiction-
stripping language in § 1005(e)(2) and (3) of the DTA. First,
building on the Executive’s creation of CSRTs, § 1005(e)(2)
permitted the D.C. Circuit to review “the validity of any final
decision of a Combatant Status Review Tribunal that an alien
is properly detained as an enemy combatant.” DTA
§ 1005(e)(2)(A). Specifically, the D.C. Circuit could review
(1) whether a final decision of a CSRT was consistent with
(1) an application for 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, who—
(A) is currently in military custody; or
(B) has been determined by the United
States Court of Appeals for the District of
Columbia Circuit in accordance with the
procedures set forth in section 1005(e) of
the Detainee Treatment Act of 2005 to
have been properly detained as an enemy
combatant.
14 HAMAD V. GATES
certain specified procedures, and (2) whether those
procedures complied with the Constitution and applicable
federal law. DTA § 1005(e)(2)(C).4 Second, DTA
§ 1005(e)(3) allowed the D.C. Circuit to perform a limited
review of convictions by military tribunals.5
4
DTA § 1005(e)(2)(C) provides:
Scope of Review—The jurisdiction of the United States
Court of Appeals for the District of Columbia Circuit
on any claims with respect to an alien under this
paragraph shall be limited to the consideration of—
(i) whether the status determination of the
Combatant Status Review Tribunal with regard to
such alien was consistent with the standards and
procedures specified by the Secretary of Defense
for Combatant Status Review Tribunals (including
the requirement that the conclusion of the Tribunal
be supported by a preponderance of the evidence
and allowing a rebuttable presumption in favor of
the Government’s evidence); and
(ii) to the extent the Constitution and laws of the
United States are applicable, whether the use of
such standards and procedures to make the
determination is consistent with the Constitution
and laws of the United States.
5
DTA § 1005(e)(3) provides, in pertinent part:
(A) In General—Subject to subparagraphs (B), (C), and
(D), the United States Court of Appeals for the District
of Columbia Circuit shall have exclusive jurisdiction to
determine the validity of any final decision rendered
pursuant to Military Commission Order No. 1, dated
August 31, 2005 (or any successor military order). . . .
HAMAD V. GATES 15
In sum, the DTA permitted the D.C. Circuit to conduct a
limited review of the detention and convictions of enemy
combatants, but it stripped any court of jurisdiction to
entertain habeas petitions or any other actions filed by
detainees determined to be enemy combatants or awaiting
such a determination.
Less than a year later, the Supreme Court held that the
DTA’s jurisdiction-stripping amendments to § 2241 did not
apply to cases pending before the DTA’s effective date. See
Hamdan, 548 U.S. at 576–78, 584 & n.15. The Court reached
this conclusion because the DTA expressly provided that the
limited review procedures of § 1005(e)(2) and (3) applied to
pending cases, but was silent about whether the jurisdiction-
stripping amendments to § 2241 also applied to these pending
cases. Id. at 574–76.
Congress responded once again by enacting the Military
Commissions Act of 2006 (MCA), Pub. L. No. 109-366, 120
Stat. 2600. Section 7 of the MCA amended 28 U.S.C.
(D) Scope of Review—The jurisdiction of the United
States Court of Appeals for the District of Columbia
Circuit on an appeal of a final decision with respect to
an alien under this paragraph shall be limited to the
consideration of—
(i) whether the final decision was consistent with
the standards and procedures specified in the
military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the
United States are applicable, whether the use of
such standards and procedures to reach the final
decision is consistent with the Constitution and
laws of the United States.
16 HAMAD V. GATES
§ 2241(e) again, broadening its jurisdiction-stripping
language.6 Id. § 7, 120 Stat. 2600, 2635–36. In direct
6
Section 7 of the MCA states:
(a) In General.—Section 2241 of title 28, United States
Code, is amended by striking [the existing subsection
(e)] . . . and inserting the following new subsection (e):
“(e)(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 paragraphs (2) and
(3) of section 1005(e) of the Detainee Treatment
Act of 2005 (10 U.S.C. 801 note) [giving the D.C.
Circuit exclusive jurisdiction to review decisions
of the CSRTs and military commissions], no court,
justice, or 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.”
(b) Effective Date.—The amendment made by
subsection (a) 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.
HAMAD V. GATES 17
response to Hamdan’s holding, Congress made unmistakably
clear that the jurisdiction-stripping language of § 2241(e)
would apply to pending cases. MCA § 7(b) (“The
amendment made by subsection (a) [adding the new
§ 2241(e)] 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.”). No further
changes have been made to the language of § 2241(e) since
this amendment.
The Supreme Court considered this amendment to
§ 2241(e) in Boumediene. Like in Hamdan, the petitioners in
Boumediene argued that § 7 of the MCA and its amendments
to § 2241(e) were “not a sufficiently clear statement of
congressional intent to strip the federal courts of jurisdiction
in pending [habeas] cases.” Boumediene, 553 U.S. at 737.
The Supreme Court rejected this argument, concluding that
Congress had finally succeeded in expressing its intent to
apply the amendments to § 2241(e) in all pending cases and
to deprive the federal courts of jurisdiction to entertain habeas
corpus actions by Guantanamo detainees designated as enemy
combatants. Id. at 738–39.
Because the Supreme Court interpreted the amendment to
§ 2241(e) as depriving petitioners of the privilege of habeas
corpus, it had to address the petitioners’ further argument that
such a deprivation was unconstitutional as a violation of the
Suspension Clause. Under the Suspension Clause, “[t]he
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.
18 HAMAD V. GATES
To address this constitutional argument, the Court had to first
determine whether habeas corpus jurisdiction extended to
foreign nationals detained outside of the boundaries of the
United States. Boumediene, 553 U.S. at 739. After a
thorough review of the history of the writ of habeas corpus
and an analysis of earlier Supreme Court decisions
considering the application of the writ to enemy aliens
abroad, the Supreme Court concluded, as a matter of first
impression, that the protection of the Suspension Clause
extended to individual detainees at Guantanamo. Id. at 771.
Accordingly, Congress could not enact a statute depriving
Guantanamo detainees of the privilege of the writ of habeas
corpus unless Congress’s actions complied with the
requirements of the Suspension Clause. Id. Because
Congress’s enactment of the MCA did not so comply, the
Court concluded that petitioners could challenge their
detention by means of a petition for habeas corpus. Id. Next,
the Court determined that the limited D.C. Circuit Review
provided by the DTA was not a sufficient substitute
procedure for habeas, in part because it did not give detainees
a sufficient ability to present exculpatory evidence. Id. at
789. The Court thus held that § 7 of the MCA “effects an
unconstitutional suspension of the writ.” Id. at 792.7
7
Boumediene’s ruling that Guantanamo detainees have a constitutional
right to file habeas petitions led to the elimination of § 1005(e)(2) and (3),
the provisions in the DTA that gave the D.C. Circuit authority to review
challenges to CSRT procedures and military tribunal convictions. Soon
after Boumediene was decided, the D.C. Circuit struck down § 1005(e)(2)
of the DTA, which had authorized it to hear certain narrow challenges to
CSRT detention determinations. Bismullah v. Gates, 551 F.3d 1068,
1072–73 (D.C. Cir. 2009). The D.C. Circuit reasoned that Congress had
enacted this provision as a “substitute for and not a supplement to habeas
corpus,” id. at 1072, and thus the provision served no purpose after
Boumediene held that detainees could bring habeas petitions. Id. at
HAMAD V. GATES 19
Because Boumediene’s holding and analysis focused on
Congress’s authority to suspend habeas corpus at
Guantanamo Bay, it did not analyze whether § 2241(e)(2)
was constitutional. Nor did the Court address the question
whether constitutional provisions other than the Suspension
Clause, such as the Fifth Amendment, are applicable to
Guantanamo detainees.
2
We now consider Hamad’s arguments in light of this
historical context. Implicitly acknowledging that
§ 2241(e)(2) would bar his actions before this court (and any
other court) if it were still in force, Hamad asks us to
conclude that § 2241(e)(2) is no longer effective, either
because it was struck down by Boumediene or because
Congress would not have intended it to continue to have force
once the Supreme Court invalidated § 2241(e)(1).
Hamad first argues that we should interpret Boumediene
as invalidating § 2241(e) as a whole, not just § 2241(e)(1).
Hamad notes that Boumediene did not expressly differentiate
between § 2241(e)(1) and (2) when it concluded that
§ 2241(e) did not bar habeas petitions by Guantanamo
detainees. Accordingly, Hamad argues, we should read
Boumediene as striking down all of § 2241(e), not just the
subsection dealing with habeas petitions, § 2241(e)(1).
1072–73. Congress subsequently repealed § 1005(e)(3) of the DTA,
which had given the D.C. Circuit exclusive jurisdiction to review
convictions by military tribunals. National Defense Authorization Act for
Fiscal Year 2010, Pub. L. 111-84, 123 Stat. 2190, 2612.
20 HAMAD V. GATES
We disagree. Although Boumediene did not expressly
differentiate between § 2241(e)(1) and (2), the logic and
context of the opinion make clear that the Supreme Court was
addressing only § 2241(e)(1). Unlike statutes, judicial
opinions “are not usually written with the knowledge or
expectation that each and every word may be the subject of
searching analysis.” United States v. Muckleshoot Indian
Tribe, 235 F.3d 429, 433 (9th Cir. 2000). Rather, as we have
long held, the “‘language of the court must be read in the
light of the facts before it.’” Id. (quoting Julian Petroleum
Corp. v. Courtney Petroleum Co., 22 F.2d 360, 362 (9th Cir.
1927)). As we have explained, Boumediene concluded that
§ 2241(e) deprived Guantanamo detainees of habeas corpus
review and that this deprivation was unconstitutional in light
of the Suspension Clause. That rationale for invalidating
§ 2241(e) applies exclusively to § 2241(e)(1), the statutory
subsection that specifically addresses jurisdiction over habeas
actions, and has no applicability to § 2241(e)(2), the statutory
subsection that applies to actions other than habeas petitions.
Indeed, the Supreme Court took pains to emphasize that it
was invalidating § 2241(e) only to the extent that the statute
barred the petitioners from filing habeas corpus actions:
“[o]ur decision today holds only that petitioners before us are
entitled to seek the writ; that the DTA review procedures are
an inadequate substitute for habeas corpus; and that
petitioners in these cases need not exhaust the review
procedures in the Court of Appeals before proceeding with
their habeas actions in the District Court.” Boumediene,
553 U.S. at 795. Given the Court’s focus on habeas petitions
and the narrowness of its holding, it is plain that the Court
was addressing only § 2241(e)(1). See Kiyemba v. Obama,
561 F.3d 509, 512 n.1 (D.C. Cir. 2009) (“The Court actually
referred to § 7 without specifying a particular subsection of
§ 2241(e) but its discussion of the Suspension Clause clearly
HAMAD V. GATES 21
indicates it was referring only to that part of § 7 codified at
§ 2241(e)(1).”). Accordingly, we conclude that Boumediene
did not address § 2241(e)(2), let alone strike it down.
3
Second, Hamad contends that, even if Boumediene did not
expressly invalidate § 2241(e)(2), we cannot sever that
section from § 2241(e)(1), which the Court did invalidate. In
essence, he argues that, in striking down § 2241(e)(1), the
Court necessarily struck down § 2241(e)(2).
We also reject this argument. As a general rule, courts
are to “refrain from invalidating more of [a] statute than is
necessary,” United States v. Booker, 543 U.S. 220, 258
(2005) (internal quotation marks omitted), because “[a] ruling
of unconstitutionality frustrates the intent of the elected
representatives.” Ayotte v. Planned Parenthood of N. New
England, 546 U.S. 320, 329 (2006) (alteration in original)
(internal quotation marks omitted). Accordingly, when we
invalidate an enactment because it is unconstitutional, we
start with a presumption that the enactment is severable from
the remainder of the section or act. See Alaska Airlines, Inc.
v. Brock, 480 U.S. 678, 685–86 (1987). This presumption of
severability is overcome only if something “in the statute’s
text or historical context makes it ‘evident’ that Congress,
faced with the limitations imposed by the Constitution, would
have preferred” no statute at all to a statute with the invalid
part excised. Free Enterprise Fund v. Pub. Co. Accounting
Oversight Bd., 130 S. Ct. 3138, 3162 (2010) (quoting Alaska
Airlines, 480 U.S. at 684). In conducting this inquiry, “we
must retain those portions of the Act that are
(1) constitutionally valid, (2) capable of functioning
independently, and (3) consistent with Congress’ basic
22 HAMAD V. GATES
objectives in enacting the statute.” Booker, 543 U.S. at
258–59 (internal citations and quotation marks omitted).
Congressional intent serves as the basis for this severability
test. Alaska Airlines, 480 U.S. at 685.
Beginning with the second prong of the Booker
severability test, it is apparent that § 2241(e)(2) is capable of
functioning independently of § 2241(e)(1). In enacting
§ 2241(e), Congress dealt separately with two different
categories of actions that could be brought by Guantanamo
detainees: § 2241(e)(1) addressed habeas petitions, while
§ 2241(e)(2) addressed “any other action.” Boumediene’s
conclusion that § 2241(e)(1) violates the Suspension Clause
does not prevent § 2241(e)(2) from functioning independently
to bar non-habeas actions directed at an alien’s detention or
treatment.
Hamad contends that Boumediene’s interpretation of
§ 7(a) and (b) of the MCA shows that § 2241(e)(2) cannot
function independently from § 2241(e)(1). As explained
above, § 7(a) amends § 2241(e)(1) and (2), while § 7(b)
provides that these amendments “apply to all cases . . .
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.”8 MCA § 7(b). The Boumediene
petitioners argued that § 7(b) applied only to the non-habeas
actions described in § 2241(e)(2) because of the textual
similarity between these two statutory provisions. Compare
MCA § 7(b) (providing that the amendments to § 2241(e)
apply to “all cases” relating “to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an alien
8
The text of § 7 of the MCA is set forth supra at note 6.
HAMAD V. GATES 23
detained by the United States”), with 28 U.S.C. § 2241(e)(2)
(barring “any other action . . . relating to any aspect of the
detention, transfer, treatment, trial, or conditions of
confinement of an alien” detained as an enemy combatant).
The Court rejected this argument, reasoning that the phrase
“any other action” in § 2241(e)(2) must be read by reference
to § 2241(e)(1), which discusses habeas actions.
Boumediene, 553 U.S. at 737 (emphasis added). Read in
context, the Court concluded, habeas actions in § 2241(e)(1)
are a subset of the broader set of actions “relating to any
aspect of the detention, transfer, treatment, trial, or conditions
of confinement of an alien.” Id. at 737–38. Accordingly,
Boumediene held that § 7(b)’s effective-date provision
applied to habeas actions as well. Id. at 738–39.
Hamad seizes on the Court’s statement that “any other
action” in § 2241(e)(2) must be read by reference to
§ 2241(e)(1) as demonstrating that § 2241(e)(2) cannot
function independently of § 2241(e)(1). We disagree. A
subsection of a statute is capable of functioning
independently as a “fully operative . . . law,” Alaska Airlines,
480 U.S. at 684 (internal quotation marks omitted), even if it
must be understood by reference to an inoperative portion of
the statute in order for its meaning to be clear. Booker held,
in striking down two sections of a statute as unconstitutional,
that excised cross-references to these invalidated sections left
the remaining sections valid and intact. 543 U.S. at 259.
Boumediene’s invalidation of Congress’s jurisdiction-
stripping provisions with respect to the subset of habeas
actions does not mean that the jurisdiction-stripping
provisions applicable to the rest of the set are nonfunctional.
Here, the reference in § 2241(e)(2) to § 2241(e)(1) merely
makes clear the jurisdiction-stripping scope of § 2241(e)(2)
as applying to all non-habeas actions. Section 2241(e)(2) is
24 HAMAD V. GATES
fully operative because it bars jurisdiction over the subset of
cases not covered by § 2241(e)(1).
We next turn to the third prong of the Booker severability
test, which asks whether retaining § 2241(e)(2) is consistent
with Congress’s basic objectives in enacting the statute.
Booker, 543 U.S. at 259. The structure of § 2241(e) indicates
that Congress was motivated by two concerns. First,
Congress sought to bar alien detainees from applying for
habeas corpus, as reflected in § 2241(e)(1). But Congress did
not stop there. In sweeping language, § 2241(e)(2) strips
jurisdiction over “any” non-habeas action that relates to “any
aspect” of enemy combatants’ “detention, transfer, treatment,
trial, or conditions of confinement.” This broad language
indicates that Congress was not concerned solely with habeas
suits, but also sought to prevent alien detainees from bringing
any other type of action that related to their detention or
treatment. Considering that the two sections of § 2241(e)
address two different types of lawsuits, we see no reason that
Congress would not have enacted § 2241(e)(2)’s bar on non-
habeas suits had it known that detainees could file for
habeas.9
9
In Boumediene, the Supreme Court held that the D.C. Circuit was
“correct to take note of the legislative history when construing the
[Military Commissions Act of 2006].” 553 U.S. at 738. Accordingly, we
take note that the floor statements accompanying the enactment of the
MCA confirm that one of Congress’s goals in amending § 2241(e) was to
limit the ability of enemy combatants to file non-habeas suits. For
instance, in discussing the MCA’s amendments to § 2241(e), Senator
Cornyn noted that the purpose of § 2241(e)(2) was to prevent U.S. troops
from being sued by detainees or former detainees. See 152 Cong. Rec.
S10,403 (daily ed. Sept. 28, 2006) (statement of Senator Cornyn)
(“Another major improvement that the MCA makes to the DTA is that it
tightens the bar on nonhabeas lawsuits contained in 28 U.S.C.
§ 2241(e)(2). . . . We do not want those who were properly detained as
HAMAD V. GATES 25
Moreover, the history of Congress’s responses to
Supreme Court decisions, as set forth above, further supports
the conclusion that preserving § 2241(e)(2) is consistent with
Congress’s basic objective in enacting the MCA, which was
to limit detainees’ access to the courts. After the Supreme
Court held that federal courts had statutory jurisdiction to
hear Guantanamo detainees’ habeas petitions, Rasul, 542 U.S.
at 484, Congress passed § 1005(e) of the DTA to strip the
courts of jurisdiction to hear such petitions or any other
claim, with the exception of certain narrow challenges that
could be filed in the D.C. Circuit. When the Supreme Court
responded in Hamdan, holding that the DTA did not apply to
pending claims, Congress passed the MCA to ensure that the
jurisdiction-stripping provisions would apply to all pending
claims. Cf. Bismullah v. Gates, 551 F.3d 1068, 1073 (D.C.
Cir. 2009). Clearly, Congress’s consistent intent was to
channel and narrowly limit detainees’ lawsuits of all sorts.
enemy combatants to be able to sue the U.S. military.”). Similarly,
Senator Sessions noted that a goal of § 2241(e) was to prevent former
detainees from filing lawsuits against military officers. See id. at S10,404
(daily ed. Sept. 28, 2006) (statement of Senator Sessions). Statements on
the floor of the House also indicate that Congress intended to limit
detainee lawsuits. See, e.g., id. at H7944 (daily ed. Sept. 29, 2006)
(statement of Rep. Sensenbrenner) (“[T]his bill makes it clear to the
terrorists and their lawyers in America that America will not allow them
to subvert our judicial process nor to disrupt the war on terror with
unnecessary or frivolous lawsuits.”); id. at H7938 (daily ed. Sept. 27,
2006) (statement of Rep. Hunter) (“The practical effect of this amendment
will be to eliminate the hundreds of detainee lawsuits that are pending in
courts throughout the country and to consolidate all detainee treatment
cases in the D.C. Circuit.”). Because the parties have not pointed to any
contrary history, the legislative history supports the conclusion that
Congress would want to preserve the jurisdictional bar on non-habeas
actions.
26 HAMAD V. GATES
Preserving the provisions of § 2241(e) that limit detainees’
legal actions other than habeas is consistent with this goal.
Finally, Hamad argues that the absence of a severability
clause indicates that Congress did not intend these provisions
to be severable, and thus holding otherwise would be
inconsistent with Congress’s objectives. But “[i]n the
absence of a severability clause . . . , Congress’ silence is just
that—silence—and does not raise a presumption against
severability.” Alaska Airlines, 480 U.S. at 686.10 The lack of
a severability clause carries no weight in our analysis because
the text and historical context of § 2241(e)(1) and (2) make
it evident that these two provisions are severable.
Because § 2241(e)(2) is capable of “functioning
independently,” and is consistent with Congress’s basic
objectives in enacting the MCA, we conclude that it is
severable from § 2241(e)(1), and remains in effect, provided
that it is constitutional.
4
We finally turn to Hamad’s arguments that § 2241(e)(2),
even if valid, is unconstitutional as applied to him.
Hamad first argues that § 2241(e) is unconstitutional,
because it deprives him of a federal forum to seek a remedy
for violations of his constitutional rights. He asserts that the
Supreme Court has never upheld such a statute, and that it has
10
Hamad notes that Congress titled § 7 of the MCA as “Habeas Corpus
Matters.” It is well-established that the title of a statute “‘cannot limit the
plain meaning of the text.’” I.N.S. v. St. Cyr, 533 U.S. 289, 308–09 (2001)
(quoting Pa. Dep’t. of Corrections v. Yeskey, 524 U.S. 206, 212 (1998)).
HAMAD V. GATES 27
always presumed that Congress did not intend to deprive
plaintiffs of a federal forum.
Hamad is correct that the Supreme Court has avoided the
question whether Congress may completely deny a plaintiff
access to federal forum to seek a remedy for a violation of
constitutional rights. See Bowen v. Mich. Acad. of Family
Physicians, 476 U.S. 667, 681 n.12 (1986) (avoiding “the
serious constitutional question that would arise if [the Court]
construed [a statute] to deny a judicial forum for
constitutional claims” (internal quotation marks omitted)).
But we can likewise avoid addressing this difficult issue,
because Hamad seeks only money damages, and the
Constitution does not require the availability of such a
remedy, even where the plaintiff’s claim is based on alleged
violations of constitutional rights. Al-Zahrani v. Rodriguez,
669 F.3d 315, 319 (D.C. Cir. 2012). The Supreme Court’s
Bivens cases make this clear. In Wilkie v. Robbins, the Court
noted that a Bivens remedy “is not an automatic entitlement
no matter what other means there may be to vindicate a
protected interest, and in most instances we have found a
Bivens remedy unjustified.” 551 U.S. 537, 550 (2007).
Indeed, the Court has declined to recognize a Bivens remedy
in a variety of contexts. See, e.g., Schweiker v. Chilicky,
487 U.S. 412 (1988) (denial of Social Security benefits);
United States v. Stanley, 483 U.S. 669 (1987) (injuries that
arise out of military service); Bush v. Lucas, 462 U.S. 367(1983) (First Amendment violations by federal employers).
Similarly, we have concluded that aliens not lawfully in the
United States may not sue federal agents for money damages
for wrongful detention. Mirmehdi v. United States, 689 F.3d
975 (9th Cir. 2012). These cases underscore that money
damages are not constitutionally required for every violation
of constitutional rights. Accordingly, § 2241(e)(2) is not
28 HAMAD V. GATES
unconstitutional as applied to Hamad’s claims for money
damages. See Al-Zahrani, 669 F.3d at 319–20.
Hamad next argues that § 2241(e) functions as an
unconstitutional bill of attainder, asserting that it strips a
“discrete class of individuals,” namely alien detainees, of
access to the courts. We disagree. “Three key features brand
a bill of attainder: that the statute (1) specifies the affected
persons, and (2) inflicts punishment (3) without a judicial
trial.” SeaRiver Maritime Fin. Holdings Inc. v. Mineta,
309 F.3d 662, 668 (9th Cir. 2002). The Supreme Court has
emphasized that a statute must show “unmistakable evidence
of punitive intent” before it may be struck down as a bill of
attainder. Flemming v. Nestor, 363 U.S. 603, 619 (1960). In
determining whether a statute inflicts punishment, we look to
whether the statute “‘falls within the historical meaning of
legislative punishment’” or does not “‘further nonpunitive
legislative purposes.’” SeaRiver, 309 F.3d at 673 (quoting
Selective Serv. Sys. v. Minn. Pub. Interest Research Group,
468 U.S. 841, 852 (1984)).
Applying these principles, we conclude that § 2241(e)(2)
is not a bill of attainder because it does not inflict legislative
punishment. Jurisdictional limitations, such as the limitations
imposed by § 2241(e)(2), do not fall within the historical
meaning of legislative punishment. Nagac v. Derwinski,
933 F.2d 990, 991 (Fed. Cir. 1991); see also Scheerer v. U.S.
Attorney. Gen., 513 F.3d 1244, 1253 n.9 (11th Cir. 2008).
Rather, the concept of legislative punishment encompasses
penalties such as “imprisonment, banishment, [ ] the punitive
confiscation of property by the sovereign” and “legislative
enactment[s] barring designated individuals or groups from
participation in specified employments or vocations.” Nixon
v. Adm’r of Gen. Servs, 433 U.S. 425, 474 (1977). As we
HAMAD V. GATES 29
have explained, Congress enacted § 2241(e) to limit and
channel federal court review of detention and military
commission decisions, not to impose any particular
punishment on military detainees. Because there is no
evidence that Congress had a punitive intent in enacting
§ 2241(e), much less “unmistakable evidence of punitive
intent,” SeaRiver, 309 F.3d at 677 (internal quotation marks
omitted), we reject Hamad’s argument that § 2241(e)(2)
constitutes a bill of attainder.
Finally, Hamad argues that § 2241(e) violates the equal
protection component of the Due Process Clause of the Fifth
Amendment.11 Noting that § 2241(e) deprives alien enemy
combatants of the ability to bring specified legal actions,
while imposing no comparable legal disabilities on citizens,
Hamad argues that this distinction “serves no compelling
legislative purpose and would not survive strict scrutiny.”
As an initial matter, the Supreme Court has not
determined whether the Fifth Amendment’s protections even
apply to Hamad. Prior to Boumediene, the Supreme Court
had “never held that noncitizens detained by our Government
in territory over which another country maintains de jure
sovereignty have any rights under our Constitution.”
Boumediene, 553 U.S. at 770. Although Boumediene
11
The Equal Protection Clause of the Fourteenth Amendment states:
“No state shall . . . deny to any person within its jurisdiction the equal
protection of the laws.” U.S. Const. amend. XIV, § 1. Although the
Fourteenth Amendment does not apply to the federal government, see
Bolling v. Sharpe, 347 U.S. 497, 499 (1954), equal protection principles
apply to the federal government through the Due Process Clause of the
Fifth Amendment, see id. at 500, which states: “No person shall be . . .
deprived of life, liberty, or property, without due process of law.” U.S.
Const. amend. V.
30 HAMAD V. GATES
ultimately concluded that the Suspension Clause applies to
aliens detained at Guantanamo Bay, the Court expressly
confined its holding to that constitutional provision alone.
See id. at 795; Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir.
2009) (“Boumediene disclaimed any intention to disturb
existing law governing the extraterritorial reach of any
constitutional provisions, other than the Suspension
Clause.”).
Assuming, without deciding, that the Fifth Amendment’s
protections apply to aliens detained outside the United States,
the Due Process Clause does not render § 2241(e)(2)
unconstitutional. Where the Fifth Amendment applies, “[t]he
federal sovereign . . . must govern impartially” and is
therefore generally subject to equal protection principles.
Hampton v. Mow Sun Wong, 426 U.S. 88, 100 (1976). Here
there is no dispute that § 2241(e)(2) makes a distinction
between aliens and citizens. In order to determine whether
this classification is constitutional, we must first determine
the appropriate standard of judicial review.
Although the Supreme Court has noted the “substantial
limitations upon the authority of the States in making
classifications based upon alienage,” Toll v. Moreno,
458 U.S. 1, 10 (1982), the federal government’s interests with
respect to aliens differ substantially from those of the states,
and there are legitimate reasons for Congress to make
classifications based on alienage, Mathews v. Diaz, 426 U.S.
67, 78–80 (1976). These reasons include Congress’s broad
authority to make such classifications under its plenary power
to regulate immigration and naturalization, see United States
v. Lopez-Flores, 63 F.3d 1468, 1473 (9th Cir. 1995), as well
as its authority to address the United States’ relations with
foreign powers and other foreign policy concerns, Mathews,
HAMAD V. GATES 31
426 U.S. at 81. Indeed, legislation with respect to aliens is
“vitally and intricately interwoven with contemporaneous
policies in regard to the conduct of foreign relations, the war
power, and the maintenance of a republican form of
government,” and “[s]uch matters are so exclusively entrusted
to the political branches of government as to be largely
immune from judicial inquiry or interference.” Id. at 81 n.17
(internal quotation marks omitted).
Accordingly, we review alienage classifications drawn by
Congress under a rational basis test. Aleman v. Glickman,
217 F.3d 1191, 1197 (9th Cir. 2000); Lopez-Flores, 63 F.3d
at 1473. “Only classifications that ‘arbitrarily subject all
resident aliens to different substantive rules from those
applied to citizens’ will fail to survive that scrutiny.” Lopez-
Flores, 63 F.3d at 1475 (quoting Hampton, 426 U.S. at 101);
accord United States v. Montenegro, 231 F.3d 389, 395 (7th
Cir. 2000); United States v. Lue, 134 F.3d 79, 86–87 (2d. Cir.
1998). Under the rational basis test, we will uphold a federal
statute that makes a classification on the basis of alienage if
it is “rationally related to a legitimate government interest.”
Montenegro, 231 F.3d at 395 (internal quotation marks
omitted). Applying this test in Lopez-Flores, we upheld the
federal Hostage Taking Act, which criminalized certain
conduct involving either a foreign perpetrator or foreign
victim, but not conduct where both the perpetrator and victim
were United States nationals. 63 F.3d at 1470–72. Rejecting
appellants’ argument that the statute violated equal protection
principles by “impermissibly classifying offenders and
victims on the basis of alienage,” id. at 1470, we concluded
that “[t]he alienage classifications contained in the Hostage
Taking Act were clearly intended to serve Congress’
legitimate foreign policy concerns,” and thus easily survived
scrutiny, Id. at 1475.
32 HAMAD V. GATES
In this case, Congress’s decision in § 2241(e)(2) to
preclude only alien detainees captured as part of the war on
terror from bringing damages actions easily passes rational
basis review. Congress’s decisions with respect to these
detainees are at the core of Congress’s authority with respect
to “the conduct of foreign relations, the war power, and the
maintenance of a republican form of government,” and thus
are entitled to the most deferential judicial review. Diaz,
426 U.S. at 81–82 & n.17 (internal quotation marks omitted).
Moreover, Congress’s decision to focus on alien detainees,
rather than citizens, is neither arbitrary nor irrational; it is
clearly intended “to serve Congress’ legitimate foreign policy
concerns,” Lopez-Flores, 63 F.3d at 1475, by ensuring that
members of the armed forces are not unduly chilled in
conducting the war on terror by concerns about foreign
nationals targeting them with damages claims.
C
Because we do not have subject-matter jurisdiction to
consider any of Hamad’s claims, we need not reach Hamad’s
other arguments on appeal.12 See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94 (1998) (when jurisdiction
“ceases to exist, the only function remaining to the court is
that of announcing the fact and dismissing the cause”
(internal quotation marks omitted)). We vacate the district
court’s orders in this case and remand with instructions to
enter judgment dismissing Hamad’s action for lack of
12
For the same reason, we do not reach the government’s arguments on
cross-appeal.
HAMAD V. GATES 33
subject-matter jurisdiction. See Capitol Industries-EMI, Inc.
v. Bennett, 681 F.2d 1107, 1118 (9th Cir. 1982).
VACATED AND REMANDED.