United States Court of Appeals, District of Columbia Circuit
from the United States District Court for the District of
Columbia (No. 1:04-cv-01194)
Sua Sponte Suggestion for Rehearing En Banc
Before: Garland, Chief Judge; Henderson [***] , Rogers, Tatel, Griffith,
Srinivasan, Millett [**] , Pillard**, Wilkins,
Katsas [*] ,
and Rao***, Circuit Judges.
the issuance of the opinion in this case, a member of the
court suggested sua sponte that the case be reheard
en banc, see D.C. Circuit Handbook of Practice and
Internal Procedures 59 (2018), and a vote was called.
Thereafter, a majority of the judges eligible to participate
did not vote to rehear this case. See Fed. R. App.
P. 35(a). Upon consideration of the foregoing, it is
that the sua sponte suggestion for rehearing en banc
Millett and Pillard, Circuit Judges, and Edwards, Senior
Circuit Judge, concurring in the denial of rehearing en banc:
the greatest respect for our two colleagues who have
dissented from the denial of rehearing en banc, we note that
the court's opinion explains in detail its consistency
with circuit and Supreme Court precedent, and principles of
stare decisis. Furthermore, it is telling that the
United States Government has not filed a petition for
rehearing en banc in this case voicing any of the concerns
that the dissenting opinion raises.
LeCraft Henderson, Circuit Judge, with whom Circuit Judge Rao
joins, dissenting from the denial of rehearing en banc:
panel decision declares that whether the Due Process Clause
of the Fifth Amendment applies to detainees at Guantanamo Bay
is an open question. Qassim v. Trump, 927 F.3d 522,
524 (D.C. Cir. 2019). It is not. The United States Supreme
Court has "rejected the claim that aliens are entitled
to Fifth Amendment rights outside the sovereign territory of
the United States." United States v.
Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (citing
Johnson v. Eisentrager, 339 U.S. 763 (1950)).
Because "[t]he Guantanamo Naval Base is not part of the
sovereign territory of the United States," we recognized
in Kiyemba v. Obama that Guantanamo Bay detainees
are not protected by the Due Process Clause of the Fifth
Amendment. 555 F.3d 1022, 1026 & n.9 (D.C. Cir. 2009)
("Decisions of the Supreme Court and of this court . . .
hold that the due process clause does not apply to aliens
without property or presence in the sovereign territory of
the United States."), vacated by 559 U.S. 131
(2010), and reinstated as amended by 605 F.3d 1046
(D.C. Cir. 2010). Qassim thus marks a low point for
this Circuit-not because it is incorrectly decided (although
it undoubtedly is)-but because going forward no precedent, no
matter how clear and on point, is settled under the doctrine
of stare decisis. According to this new Circuit law, the way
to deal with Supreme Court precedent that the panel finds
uncomfortable is to disregard it, and the way to deal with
like Circuit precedent is to treat its holding as dictum.
Accordingly, I dissent from the denial of rehearing en banc.
Qassim is detained at the Guantanamo Bay Naval Base and
claims that "the government's use of undisclosed
classified information as a basis for his detention"
violates his right to due process under the Fifth Amendment
to the United States Constitution. Qassim, 927 F.3d
at 524. The district court held that under precedent,
Guantanamo Bay detainees have no such right. Id. at
527 ("The district court denied the motion in
limine, reading this court's decision in
Kiyemba as establishing that Qassim had no right to
due process."). The panel reversed, stating that neither
Kiyemba v. Obama nor "any other decision of
this circuit adopted a categorical prohibition on affording
detainees seeking habeas relief any constitutional procedural
protections." Id. at 524.
review is appropriate if a panel decision creates an
irreconcilable conflict with Supreme Court or Circuit
precedent. Fed. R. App. P. 35(a)(1) ("An en banc hearing
or rehearing is not favored and ordinarily will not be
ordered unless . . . en banc consideration is necessary to
secure or maintain uniformity of the court's
decisions."). Qassim does both.
ignores controlling Supreme Court precedent. In Johnson
v. Eisentrager, the Supreme Court held-in the clearest
possible terms-that the Fifth Amendment does not apply to
aliens outside the territory of the United States. 339 U.S.
at 784-85 ("Such extraterritorial application of organic
law would have been so significant an innovation in the
practice of governments that, if intended or apprehended, it
could scarcely have failed to excite contemporary comment.
Not one word can be cited. No decision of this Court supports
such a view. None of the learned commentators on our
Constitution has ever hinted at it. The practice of every
modern government is opposed to it." (internal citation
omitted)). That indeed is exactly how two other Supreme Court
decisions read Eisentrager. In United States v.
Verdugo-Urquidez, the Court described
Eisentrager's "rejection of
extraterritorial application of the Fifth Amendment" as
"emphatic." 494 U.S. at 269. And Zadvydas v.
It is well established that certain constitutional
protections available to persons inside the United States are
unavailable to aliens outside of our geographic borders. See
United States v. Verdugo-Urquidez,494 U.S. 259, 269
(1990) (Fifth Amendment's protections do not
extend to aliens outside the ...