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No. 12-35475
D.C. No.
Appeal from the United States District Court
for the Western District Washington
Robert Bryan, Senior District Judge, Presiding
Argued and Submitted
June 2013 Seattle, Washington
Filed December 20, 2013
Before: Arthur Alarc Margaret McKeown,
and Sandra Ikuta, Circuit Judges.
Opinion Judge McKeown
Military Commissions Act
The panel affirmed the district court dismissal
action brought plaintiff non-citizen enemy combatant 
challenging ongoing proceedings against him before
military commission the United States Naval Base
Guantanamo Bay, Cuba.
The panel held that, pursuant Hamad Gates,
732 F.3d 990 (9th Cir. 2013), Section the Military
Commissions Act 2006 deprived the district court
subject matter jurisdiction over plaintiff claims, which were
non-habeas claims. The panel rejected plaintiff claims
challenging the constitutionality the Military Commissions
Michel Paradis (argued), Office the Chief Defense
Counsel, Washington, D.C.; Richard Kammen, Gilroy,
Kammen, Maryan Moudy, Indianapolis, Indiana; Robert
Gombiner, Law Offices Robert Gombiner, Seattle,
Washington, for Plaintiff-Appellant.
Sydney Foster (argued) and Robert Loeb, Attorneys,
Appellate Staff, and Stuart Delery, Principal Deputy
Assistant Attorney General, United States Department
This summary constitutes part the opinion the court. has
been prepared court staff for the convenience the reader.
Justice, Civil Division, Washington, D.C.; Jenny Durkan,
United States Attorney, Seattle, Washington, for DefendantAppellee.
James Brosnahan, Somnath Raj Chatterjee, and Megan
Kiefer, Morrison Foerster LLP, San Francisco, California,
for Amici Curiae Retired Military Admirals, Generals, and
David Remes, Appeal for Justice, Silver Spring, Maryland;
John Parry, Portland, Oregon; William Aceves, San
Diego, California, for Amicus Curiae Physicians for Human
McKEOWN, Circuit Judge:
Abd Rahim Hussein Al-Nashiri noncitizen enemy
combatant undergoing proceedings before military
commission the United States Naval Base Guantanamo
Bay, Cuba. The charges against Al-Nashiri arose from his
alleged role three terrorist plots: the 2000 attempted
bombing the U.S.S. The Sullivans; the 2000 bombing
the U.S.S. Cole, which killed seventeen U.S. military
personnel; and the 2002 bombing the M/V Limburg, which
killed one civilian. Al-Nashiri seeks declaratory judgment
that the military commission lacks jurisdiction hear the
charges against him because the alleged acts occurred
Yemen, where argues war hostilities existed 2000 2002. More specifically, claims that Vice Admiral
Bruce MacDonald (Ret.), then the Convening Authority for
the Office Military Commissions, over-stepped his
authority because [t]he President and Congress uniformly
declined confer [war-time] status events Yemen 
during that period. Consistent with our recent decision
Hamad Gates, 732 F.3d 990 (9th Cir. 2013), hold that
Section the Military Commissions Act MCA
2006 deprived the district court subject matter jurisdiction
over Al-Nashiri claims. U.S.C. 2241(e).
Congress, authorizing the use military force
following the September 11, 2001 terrorist attacks, gave the
President the power detain certain individuals
 fundamental and accepted incident war. Boumediene Bush, 553 U.S. 723, 733 (2008) (quoting Hamdi
Rumsfeld, 542 U.S. 507, 518 (2004) (plurality opinion)).
Shortly thereafter, President Bush issued order providing
for military commission trials noncitizens had reason
believe had been currently were members al-Qaida
had otherwise participated terrorist activities directed the
United States. Detention, Treatment, and Trial Certain
Non-Citizens the War Against Terrorism, Fed. Reg.
57,833 (Nov. 13, 2001). 2004 Department Defense
order created the Combatant Status Review Tribunal
determine whether the Executive Branch had properly
designated noncitizen detainees enemy combatants. 
Memorandum from Deputy Secretary Defense Paul
Wolfowitz Order Establishing Combatant Status Review
Tribunal (July 2004), available
Absent such designation, military commissions lack
authority over detainees. U.S.C. 948b (providing that
the MCA purpose establish[] procedures governing
the use military commissions try alien unlawful enemy
combatants engaged hostilities against the United States
cf. Hamdi Rumsfeld, 542 U.S. 507, 509 (2004) (stating that citizen held the United States enemy combatant
[must] given meaningful opportunity contest the
factual basis for that detention, i.e. his designation
enemy combatant).
After legal challenges multiple fronts, Hamdan
Rumsfeld, the Supreme Court invalidated, violations the
Uniform Code Military Justice and the Geneva
Conventions, number the commission procedures
authorized statute and executive order. 548 U.S. 557, 625
(2006). response Hamdan, Congress enacted the
Military Commissions Act 2006. Pub. No. 109 366,
120 Stat. 2600 (2006) 2006 MCA U.S.C. 2241(e)
(2006); see Boumediene, 553 U.S. 735. The 2006 MCA
authorized trial military commission for alien unlawful
enemy combatant[s]. 2006 MCA 2009, Congress largely superseded the 2006 MCA and
provided detainees certain additional procedural safeguards.
Military Commissions Act 2009, Pub. No. 111 84, 123
Stat. 2574 (2009) 2009 MCA U.S.C. 948a seq.
Relevant these proceedings, the 2009 MCA authorized the
President establish military commissions try alien
unprivileged enemy belligerents, opposed the earlier
designation, enemy combatants, for violations the law
war and other offenses triable military commissions. U.S.C. 948b(a) (b), 948c. The offenses specified
the 2009 MCA are triable military commission only the offense committed the context and associated
with hostilities. Id. 950p(c). Under the 2009 MCA,
hostilities are any conflict subject the laws war. Id.
Al-Nashiri, Saudi national, was arrested Dubai
2002 and held U.S. custody. September 2006, AlNashiri was transferred Guantanamo Bay, where
remains detention. The following year, Combatant Status
Review Tribunal determined that Al-Nashiri was enemy
combatant. Charges against Al-Nashiri alleging nine
violations the MCA were referred the Military
Commission Convening Authority 2011. The charges
included the three referenced al-Qaida terrorist plots,
conspiring with Osama bin Laden and others between 1996
and 2002 commit Terrorism and Murder Violation
the Law War, and other related charges.
Following referral these charges, Al-Nashiri formally
requested that MacDonald not convene military
Al-Nashiri principally argued that the
commission could not try him for the alleged offenses
because they did not occur the context and were not
associated with hostilities. This argument was based
statement President Clinton response the U.S.S. Cole
bombing suggesting that was peacetime attack;
Congress failure declare war pass any other reviewing novo the government motion dismiss, accept true the factual allegations Al-Nashiri Complaint. See Ashcroft
Iqbal, 556 U.S. 662, 678 (2009).
Under the 2009 MCA, Al-Nashiri now classified alien
unprivileged enemy belligerent. U.S.C. 948c.
authorization for the use military force response the
U.S.S. Cole bombing; President Bush failure certify the
existence hostilities Yemen until his War Powers
Resolution report Congress September 2003; and the
fact that Congress first recognized armed conflict
Yemen 2009 Senate resolution.3
MacDonald issued orders convening commission try
Al-Nashiri for the charges associated with the three terrorist
plots. response, Al-Nashiri filed suit the Western
District Washington naming MacDonald, the sole
defendant, his individual capacity. The Complaint alleges
that MacDonald military commission referral violated U.S.C. 950p(c); Article III the Constitution; and
the Fifth, Sixth, and Eighth Amendments because the alleged
offenses did not occur, matter law, the context and [were] not associated with hostilities. requested declaratory judgment stating that neither the President nor
Congress certified the existence armed conflict subject the laws war Yemen prior September 2003 and
See, e.g., The President Radio Address, Weekly Comp. Pres. Doc.
2176, 2177 (Oct. 14, 2000) (containing President Clinton remarks
response the U.S.S. Cole bombing which stated that even when
America not war, the men and women our military risk their lives
every day and that [n]o one should think for moment that the strength our military less important times peace Letter
Congressional Leaders Reporting Efforts the Global War
Terrorism, Weekly Comp. Pres. Doc. 1247, 1247 (Sept. 19, 2003)
(providing President Bush 2003 War Powers Resolution report
Congress which stated that the United States had undertaken
 military operations against al-Qaida and other international terrorists
the Horn Africa region, including Yemen Res. 341, 111th Cong.
(2009) (enacted) (expressing concern about conflict between rebel forces
and the Government Yemen resulting civilian displacement since
that MacDonald acted beyond his authority and violation the constitution issuing orders convene military
commission with the power recommend the sentence
death for allegations relating the three bombing incidents.
The district court dismissed Al-Nashiri suit for lack
subject matter jurisdiction the grounds that MCA and
sovereign immunity barred the claims. the alternative, the
court reasoned that even had subject matter jurisdiction,
principles restraint articulated Schlesinger
Councilman, 420 U.S. 738 (1975), counseled favor the
court abstention from exercising equitable jurisdiction.
DISCUSSION MILITARY COMMISSIONS ACT first consider the threshold question whether MCA stripped the district court subject matter jurisdiction
over Al-Nashiri action. The answer, according Hamad, yes.
Section the Military Commissions Act provides:
(1) court, justice, judge shall have
jurisdiction hear consider application
for writ habeas corpus filed
behalf alien detained the United
States who has been determined the United
States have been properly detained
enemy combatant awaiting such
(2) Except provided paragraphs (2) and
(3) section 1005(e) the Detainee
Treatment Act 2005 (10 U.S.C. 801 note), court, justice, judge shall have
jurisdiction hear consider any other
action against the United States its agents
relating any aspect the detention,
transfer, treatment, trial, conditions
confinement alien who was
detained the United States and has been
determined the United States have been
properly detained enemy combatant
awaiting such determination. U.S.C. 2241(e).
Subsection (1) not applicable because Al-Nashiri not
seeking writ habeas corpus. Subsection (2), however,
plainly applies Al-Nashiri action. See Gross FBL Fin.
Servs., Inc., 557 U.S. 167, 175 (2009) Statutory
construction must begin with the language employed
Congress and the assumption that the ordinary meaning
that language accurately expresses the legislative purpose.
(internal quotation marks omitted)). begin, Al-Nashiri
seeks equitable relief based upon non-habeas action against agent the United States, MacDonald the Convening
Authority. Al-Nashiri, Saudi national, does not contest his
designation enemy combatant. Instead, challenges
the government authority proceed with his military
commission trial, arguing that the alleged offenses did not
occur the context hostilities. Finally, Al-Nashiri does
not fall under any the exceptions subsection (2)
permitting courts hear certain cases under the Detainee
Treatment Act. See Detainee Treatment Act 2005, Pub.
No. 109 148, div. title 1005(e), 119 Stat. 2680
(providing the D.C. Circuit with jurisdiction over limited
challenges, such contesting combatant status review
standards and procedures and final decisions military
commission). Based the allegations the Complaint and
under the plain terms 2241(e)(2), MCA bars the
district court from exercising jurisdiction over Al-Nashiri
Recognizing the difficulty overcoming the plain
language MCA Al-Nashiri nonetheless argues that
MCA did not strip the district court subject matter
jurisdiction because the Supreme Court Boumediene struck
down MCA its entirety, MCA does not apply the
claims this suit, and MCA unconstitutional.4 MILITARY COMMISSIONS ACT AFTER
BOUMEDIENE Boumediene, the Supreme Court held that MCA
 operate[d] unconstitutional suspension the writ
habeas corpus for military detainees held Guantanamo
Bay. 553 U.S. 733. According the Court, the
Suspension Clause had full effect Guantanamo Bay and
MCA did not purport formal suspension the
writ. Id. 771. holding, the Court did not specify that particular subsection MCA was unconstitutional. Id. light our decision, need not reach Al-Nashiri other
arguments regarding abstention under Schlesinger Councilman
whether MacDonald can assert sovereign immunity. See Sinochem Int
Co. Ltd. Malaysia Int Shipping Corp., 549 U.S. 422, 431 (2007) [A]
federal court has leeway choose among threshold grounds for denying
audience case the merits. (internal quotation marks and citation
AL-NASHIRI MACDONALD 795. The Court Appeals for the D.C. Circuit later held
that Boumediene applied only the stripping habeas
jurisdiction, the first section the statute, leaving force
 2241(e)(2). Al-Zahrani Rodriguez, 669 F.3d 315, 319
(D.C. Cir. 2012). Hamad, agreed with the D.C. Circuit, holding that
 the logic and context [Boumediene] make clear that the
Supreme Court was addressing only 2241(e)(1). 732 F.3d 1000. Reasoning that 2241(e)(2) capable
 functioning independently, and consistent with
Congress basic objectives enacting the MCA,
concluded that 2241(e)(2) severable from 2241(e)(1)
and remains effect, provided that constitutional. Id. 1003. Hamad forecloses Al-Nashiri argument that
Boumediene struck down MCA whole. APPLICABILITY MCA THIS SUIT
Even MCA survives Boumediene, Al-Nashiri argues
that MCA does not apply this suit for three reasons: suing MacDonald his individual capacity, not
 agent the United States; not objecting any
aspect trial, but rather the creation the military
commission itself; and the legislative history the 2009
MCA counsels against reading MCA apply his suit. disagree. are unpersuaded Al-Nashiri claim that his suit
against MacDonald individual and not agent the
United States his official capacity. The language the
Complaint belies this assertion. The declaratory relief that
Al-Nashiri seeks only meaningful binds the U.S.
government and its agents. seeks declaration that
 neither the President nor Congress certified the existence armed conflict subject the laws war Yemen prior September 2003 and that MacDonald acted beyond his
authority and violation the constitution issuing orders convene military commission with the power
recommend the sentence death for allegations relating 
the three bombing incidents. This requested relief aimed
either invalidating the referral order convincing the
Convening Authority that does not have jurisdiction over
Al-Nashiri, and would futile not directed against the
United States its agents within the meaning MCA
Cf. Wolfe Strankman, 392 F.3d 358, 367 n.2 (9th Cir. 2004)
(holding U.S.C. 1983 action that the plaintiff sought
declaratory and injunctive relief only available against
defendants their official capacities).
Because this official capacity suit, grant the
government motion substitute MacDonald with Paul
Oostburg Sanz, who replaced MacDonald the Convening
Authority March 2013. See Fed. App. 43(c)(2) When public officer who party appeal
official capacity ceases hold office [t]he public
officer successor automatically substituted party.
Al-Nashiri citation Larson Domestic Foreign
Commerce Corporation, 337 U.S. 682 (1949), unavailing. Larson, the Supreme Court held that sovereign immunity
does not bar suit for specific relief against government
official when, for example, the official purports act
individual and acts ultra vires, the official commits
unconstitutional act because the statute order conferring
power upon the officer take action claimed
unconstitutional. Id. 689 90. Not only MCA
constitutional, the only action MacDonald took issuing
orders convene military commission was his official
capacity. Congress also impliedly sought limit judicial
review here enacting alternative remedial scheme.
the Supreme Court explained, [individual] relief can
granted, without impleading the sovereign, only because
the officer lack delegated power. claim error the
exercise that power therefore not sufficient. Id. 690.
Al-Nashiri cannot simply convert his suit individual 
action invoking that magic word his Complaint.
need not address whether his suit barred sovereign
immunity because falls squarely within the jurisdictionstripping provisions MCA
Al-Nashiri effort sidestep the jurisdictional bar the
ground that not objecting the creation the military
commission itself fares better. urges that his challenge the military commission authority over the charges
against him does not constitute any aspect trial. The
broad phrase relating any aspect trial naturally
includes the threshold question whether the tribunal has
jurisdiction over the parties and claims. MCA 7(2).
Indeed, Congress expressly provided the military
commissions with this authority, stating that military
commission competent tribunal make finding
sufficient for jurisdiction. U.S.C. 948d. note that
after briefing this appeal, the Military Commissions Trial
Judiciary, Guantanamo Bay, Cuba, denied without prejudice
Al-Nashiri motion dismiss based his claim that the
Convening Authority exceeded his authority. Order, No.
AE104 (Jan. 13, 2013). The military judge held that
 [w]hether hostilities existed between Qaeda and the
United States the dates the accused alleged acts
question fact and element proof, which must
carried the government. Order The tribunal further
held that, matter law, owed judicial deference
the political branches collective determination the
existence hostilities. Order
Al-Nashiri also points the legislative history the
2009 MCA, claiming that undermines the application
MCA his claims. The 2009 MCA omits U.S.C.
 950j(b), statutory provision from the 2006 MCA that
barred courts from hearing any claim cause action
whatsoever relating the prosecution, trial, judgment military commission. Al-Nashiri thus argues that,
effectively repealing this provision, Congress could not have
intended maintain such broad jurisdiction-stripping
language MCA for non-habeas claims. return the plain language the statute, which
controls unless its application leads unreasonable
impracticable results. Valladolid Pac. Operations
Offshore, LLP, 604 F.3d 1126, 1133 (9th Cir. 2010) (internal
quotation marks omitted). discussed above, the plain
language MCA controls all judicial jurisdiction
barred for non-habeas action. This result both reasonable
and practicable. The history 950j(b) points
exception for non-habeas claims. Nor was the section singled
out for omission. Rather, Congress replaced the entire
chapter which was part. See Pub. No. 111 84, div. tit. XVIII, 1802, 123 Stat. 2574 612. revised the
language governing military commissions and granted the
D.C. Circuit exclusive authority determine the validity final judgment rendered military commission when
other review procedures had been exhausted. U.S.C.
 950g(a). Nothing the text suggests that Congress
intended exempt non-habeas claims from the requirements MCA
Al-Nashiri also claims that MCA violates his right
equal protection under the Fifth Amendment5 and constitutes bill attainder. Both arguments were rejected Hamad,
where held that Congress decision 2241(e)(2)
preclude only alien detainees captured part the war
terror from bringing damages actions easily passes rational
basis review. 732 F.3d 1006. concluded that the
classification served legitimate foreign policy concern[]
ensuring that members the armed forces are not unduly
chilled conducting the war terror concerns about
foreign nationals targeting them with damages claims. Id.
(internal citation and quotation marks omitted).
Hamad also addressed identical bill attainder
challenge. Our rejection was swift: does not violate the
Bill Attainder Clause, U.S. Const. art. cl.
 because does not inflict legislative punishment
historically understood.
Hamad, 732 F.3d 1004.
 Congress enacted 2241(e) limit and channel federal
court review detention and military commission decisions,
Although Al-Nashiri did not raise this Fifth Amendment argument
the district court, consider here because question law that
easily disposed Hamad. United States Flores-Montano,
424 F.3d 1044, 1047 (9th Cir. 2005) While issues not raised the
district court normally are deemed waived, have recognized three
narrow exceptions this general rule, including where the issue
presented purely one law and the opposing party will suffer
prejudice result the failure raise the issue the trial court
(internal quotation marks omitted)).
not impose any particular punishment military
detainees. Id.