Lawsuit Filed Against Donald Rumsfeld
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
No. 03-2235
DONALD RUMSFELD,
Respondent-Appellant-Cross-Appellee,
v.
JOSE PADILLA,
Petitioner-Appellee-Cross-Appellant.
Appeal from the United States District Court
for the Southern District of New York, The
Honorable Michael B. Mukasey
Chief Judge United States District Court
Brief of Proposed Amicus Curiae Public
Defender Service for
the District of Columbia
In Support of Response of Petitioner-
Appellee Jose Padilla Regarding Proper
Habeas Respondent and Personal
Jurisdiction Issues
James W. Klein
Giovanna Shay
*Timothy P. O’Toole
PUBLIC DEFENDER SERVICE
633 Indiana Avenue, NW
Washington, DC 20004
(202) 628-1200
*Counsel of Record for Proposed Amicus
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................................................................................. ii
STATEMENT OF INTEREST OF AMICUS CURIAE ................................................. 1
A. THE SECRETARY OF DEFENSE, DONALD RUMSFELD, IS A
PROPER RESPONDENT ............................................................................... 8
1. Modern Rules Of Habeas And Civil Procedure Demonstrate
That Secretary Rumsfeld Is A Proper Respondent........................ 8
2. The Case Law Advocating A More Rigid Definition Of
“Custodian” Arises Out Of Concerns About Forumshopping
By Federal Prisoners In Run-Of-The-Mill Habeas
Cases. ...................................................................................................... 16
B. THE TRIAL JUDGE PROPERLY EXERCISED PERSONAL
JURISDICTION OVER SECRETARY RUMSFELD........................... 19
CONCLUSION ........................................................................................................................ 30
ii
TABLE OF AUTHORITIES
Page
CASES
Ahrens v. Clark, 335 U.S. 188 (1948)…………………………………passim
Al-Marri v. Bush , et al., 2003 WL 21789542 (C.D. Ill. 2003).....................15
Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102
(1987)….……………………………………………………………20, 29
Braden v. 30th Judicial District of Kentucky, 410 U.S. 484 (1973)…passim
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985) ................................20
Burns v. Wilson, 346 U.S. 137 (1953)...........................................................12
California Department of Corrections v. Morales, 514 U.S. 499
(1995)…………………………………………………………………...12
Chatman-Bey v. Thornburgh, 864 F.2d 804 (D.C. Cir. 1988)(dicta)............16
CutCo Industries v. Naughton, 806 F.2d 361 (2d Cir. 1986)........................26
Demjanjuk v. Meese, 784 F.2d 1114 (D.C. Cir. 1986)..................................24
Eisel v. Secretary of the Army, 477 F.2d 1251 (D.C. Cir. 1973)...................17
Gargano v. Internal Rev. Service, 207 F.R.D. 22 (D. Mass. 2002) ..............28
Garlotte v. Fordice, 515 U.S. 39 (1995) .......................................................12
Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) ........................................15
Harris v. Nelson, 394 U.S. 286 (1969)..........................................................13
Henderson v. I.N.S., 157 F.3d 106 (2nd Cir. 1998)…………………...passim
iii
Hensley v. Municipal Court, San Jose Milpitas Judicial District, 411
U.S. 345 (1973) ........................................................................................11
International Shoe Co. v. State of Washington, 326 U.S. 310
(1945)……………….………………………………………………..2, 20
Kerr v. Compagnie de Ultramar, 250 F.2d 860 (2d Cir. 1958) ....................14
Kreutter v. McFadden Oil Corp., 527 N.Y.S.2d 195 (N.Y. 1988) ...............27
Kulko v. Superior Court of California, 436 U.S. 84 (1978)..........................29
Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 261
N.Y.S.2d 8 (N.Y. 1965)............................................................................26
McCall v. Swain, 510 F.2d 167 (D.C. Cir. 1975)………………………17, 24
Guerra v. Meese, 786 F.2d414 (D.C. Cir. 1986)………………………16, 18
Middendorf v. Henry, 425 U.S. 25 (1976).....................................................12
Miranda v. Bennett, 322 F.3d 171 (2d Cir. 2003) .........................................13
Ex parte Mitsuye Endo, 323 U.S. 283 (1944)................................................21
Monk v. Secretary of the Navy, 793 F.2d 364 (D.C. Cir. 1986)………..16, 18
Padilla v. Bush et al., 233 F. Supp. 2d 564 (S.D.N.Y. 2002)………….26, 27
Parisi v. Davidson, 396 U.S. 1233 (1969) ....................................................12
Pennoyer v. Neff, 95 U.S. 714 (1877)…………………………………...2, 20
Ralls v. Manson, 503 F.2d 491 (2d Cir. 1974) ..............................................13
Reese v. United States Board of Parole, 498 F.2d 698 (D.C. Cir.
1974).........................................................................................................17
Schlanger v. Seamans, 401 U.S. 487 (1971)…………………………..12, 19
iv
Slack v. McDaniel, 529 U.S. 473 (2000).......................................................13
Society of European Stage Authors and Composers, Inc. v. WCAU
Broadcasting Co., 1 F.R.D. 264 (E.D. Pa. 1940).....................................14
Stokes v. United States Parole Commission, No. 01-5432 (Rehearing
granted, May 8, 2003) ................................................................................1
Strait v. Laird, 406 U.S. 341 (1972)…………………………………..passim
United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)............................12
Vasquez v. Reno, 233 F.3d 688 (1st Cir. 2000)………………………...15, 18
Wainwright v. Greenfield, 474 U.S. 284 (1986) ...........................................12
Wales v. Whitney, 114 U.S. 564 (1885).........................................................11
Woodford v. Garceau, 123 S. Ct. 1398 (2003)..............................................13
World Wide Volkswagen v. Woodson, 444 U.S. 286 (1980)...........................3
Wren v. Carlson, 506 F.2d 131 (D.C. Cir. 1974) ..........................................17
Yesil v. Reno, 175 F.3d 287 (2d Cir. 1999)………………………………...26
Yesil v. Reno, 682 N.Y.S. 2d 663, 663-64 (N.Y. 1998)……………………28
Zankel v. United States, 921 F.2d 432 (2d Cir. 1990)...................................28
STATUTES AND RULES
10 U.S.C. § 892 (2003)..................................................................................16
28 U.S.C. § 2241 (2003)………………………………………………passim
28 U.S.C. § 2242 (2003) ……………………………………………………9
28 U.S.C. § 2243 (2003)..................................................................................6
v
18 U.S.C. § 4001(b)(1) (2003) ......................................................................17
18 U.S.C. § 4041 (2003)................................................................................17
18 U.S.C. § 4042 (2003)................................................................................17
D.C. Code § 24-101 (2003) .............................................................................1
Fed. R. App. P. 32(a)(6) ................................................................................31
Fed. R. App. P. 32(a)(7)(B) ...........................................................................31
Fed. R. Civ. P. 4.............................................................................................20
Fed. R. Civ. P. 4(i).........................................................................................28
Fed. R. Civ. P. 4(k)(1) ...................................................................................20
Fed. R. Civ. P. 4(k)(2) ...................................................................................20
Fed. R. Civ. P. 17...........................................................................................14
Fed. R. Civ. P. 19...........................................................................................14
Fed. R. Civ. P. 81(a)(2) ...................................................................................9
Fed. Rules Governing Habeas Corpus Cases 2 ...............................................9
N.Y. C.P.L.R. § 302(a)(1)……………………………………………...25, 26
Sup. Ct. R. 10 ................................................................................................15
TREATISES
Wright & Miller, Federal Practice and Procedure § 1107 at 20-21 &
26 n. 23 (3d ed. 2002)...............................................................................28
Wright & Miller, Federal Practice & Procedure § 1063 at 327 (3d ed.
2002).........................................................................................................20
STATEMENT OF INTEREST OF AMICUS CURIAE
Amicus curiae Public Defender Service for the District of Columbia (PDS) is
a federally funded agency that represents indigent defendants in the District of
Columbia. As a result of the National Capital Revitalization and Self-Government
Improvement Act of 1997, codified in relevant part in D.C. Code § 24-101 (2003),
District of Columbia felons serve their sentences in Federal Bureau of Prisons
facilities outside the territorial confines of the District of Columbia. Accordingly,
PDS is litigating similar habeas jurisdiction issues in a number of courts, including
the United States Court of Appeals for the District of Columbia Circuit, see Stokes
v. United States Parole Commission, No. 01-5432 (Rehearing granted, May 8,
2003).
2
INTRODUCTION
This case presents an extreme set of jurisdictional facts. The government
argues that it can send United States officials into the district of a United States
District Judge, seize prisoners held there on that judge’s warrants, remove those
prisoners from the district, and then be immune from defending the legality of its
conduct before the same judge. This argument contradicts modern notions about
the power of federal courts and, indeed, no other civil defendant could assert that a
federal court lacked jurisdiction because the defendant successfully sent its agents
into the district, removed the subject of the lawsuit, and fled into another location.
Ever since the Supreme Court rejected the rigid territorial rule of Pennoyer v. Neff,
95 U.S. 714 (1877), in favor of a functional approach to jurisdiction exemplified
by International Shoe Co. v. State of Washington, 326 U.S. 310 (1945), such
arguments are doomed to failure. The same holds true in habeas: Supreme Court
habeas jurisprudence has abandoned an “inflexible jurisdictional rule,” Braden v.
30th Judicial District of Kentucky, 410 U.S. 484, 500 (1973), in favor of explicit
reliance on modern principles of personal jurisdiction and service of process, Strait
v. Laird, 406 U.S. 341, 345 n.2 (1972).
The Supreme Court rejected archaic notions of territorial jurisdiction for
important policy reasons that particularly apply in habeas. Modern rules recognize
that a defendant’s choice to remain outside the territory should not impose an
3
insurmountable jurisdictional barrier to litigating in the court most connected to the
parties, the witnesses, and the subject matter of the lawsuit – unless requiring the
defendant to litigate in a distant place would be fundamentally unfair. World Wide
Volkswagen v. Woodson, 444 U.S. 286, 292 (1980). Those fairness concerns are
entirely absent in habeas cases like this one because it cannot be “unfair” to make
the United States government, which has its own “law firm” in every judicial
district and which is the real party in interest, defend a case in a United States
District Court.
Instead of invoking fairness concerns, the United States relies entirely on the
specter of prisoner forum-shopping – that is, the concern that, if jurisdiction exists
in every United States District Court, a prisoner could select any forum in which to
litigate his habeas claims. But as many courts (including this one) have found,
rigid jurisdictional rules are unnecessary, since venue rules provide ample
authority to prevent prisoner forum-shopping, while ensuring that the choice of
forum question is resolved not only by examining the prisoner’s physical location,
but also considerations of convenience, the subject matter of the lawsuit, and the
interests of the court.
Ironically, the government’s argument creates a substantial opportunity for
forum-shopping by the United States. An inflexible jurisdictional rule focusing
solely on the prisoner’s physical location allows the government to control the
4
forum in every habeas corpus case – an unprecedented power enabling the
government to force prisoners to conduct habeas corpus litigation in distant,
inconvenient (and potentially hostile) forums uniquely within the defendant’s
control. Moving Mr. Padilla from a forum where he already had a pending court
case and diligent representation by counsel, to a location with no connection to the
subject matter of the lawsuit and where Mr. Padilla cannot communicate with
anyone, including lawyers, might suggest to a reasonable observer that that is
exactly what the government is trying to do here.
Such perceptions undermine the integrity of the judicial process. The
government secured Mr. Padilla’s initial capture and transport to New York by
invoking Chief Judge Mukasey’s judicial powers, and the timing of the
government’s declaration of Mr. Padilla as an enemy combatant was apparently
triggered by approaching hearings on motions filed by Mr. Padilla’s courtappointed
lawyer. Padilla v. Bush et al., 233 F.Supp. 2d 564, 571 (S.D.N.Y.
2002). The government thus intricately involved the district court in the process
leading to Mr. Padilla’s capture as an enemy combatant. The government provided
the district court with a strong institutional interest in vindicating its own processes
and in ensuring that it was not used for an improper purpose. This interest, as well
as the fact that the Southern District of New York was the forum where Mr. Padilla
was physically located at the time of his designation as an enemy combatant and
5
seizure by agents of Secretary Rumseld, and where Mr. Padilla had a relationship
with counsel, all strongly support Chief Judge Mukasey’s determination that he
had jurisdiction to hear Mr. Padilla’s case.
6
ARGUMENT
The government advances two related arguments concerning jurisdiction.
First, the government asserts that the habeas statutes, specifically 28 U.S.C. § 2243
(2003), mandate that the only proper respondent in a habeas action is the prisoner’s
immediate, physical custodian. Second, the government contends that, under 28
U.S.C. § 2241 (2003), a district court cannot exercise personal jurisdiction over a
custodian located outside of its territorial district, and thus cannot exercise personal
jurisdiction over the “only” proper respondent – Commander Marr.
We explain in detail below why the government’s arguments cannot be
squared with the controlling law. But the overarching flaw in the government’s
position is that its rigid formalism reflects a bygone era, incompatible with modern
Supreme Court cases like Braden v. 30th Judicial District of Kentucky, 410 U.S.
484 (1973), which overruled and abandoned the “inflexible jurisdictional rule” set
out in the earlier leading case, Ahrens v. Clark, 335 U.S. 188 (1948).
In Ahrens, 120 Germans detained at Ellis Island after World War II brought
a habeas corpus action in the District of Columbia to challenge deportation orders
issued by the Attorney General. Starting from the then “accepted premise that
apart from specific exceptions created by Congress the jurisdiction of the district
courts is territorial,” id. at 190, the Supreme Court construed the statutory habeas
corpus phrase “within their respective jurisdictions” as limiting “the district courts
7
to inquiries into the causes of restraints of liberty of those confined or restrained
within the territorial jurisdiction of those courts.” Id. at 190-91.
A quarter-century later, the Supreme Court explicitly overruled Ahrens,
concluding that, “[D]evelopments since Ahrens have had a profound impact on the
continuing vitality of that decision.” Braden v. 30th Judicial Circuit Court, 410
U.S. at 497. Modern notions about the ability of courts to exercise jurisdiction
over persons beyond their territorial borders, as well as Congressional enactments
expressly allowing other types of extra-territorial prisoner litigation, cast doubt on
Ahrens by “recogniz[ing] the substantial advantages of having these cases resolved
in the court which originally imposed the confinement or in the court located
nearest the site of the underlying controversy.” Braden, 410 U.S. at 497.
The Supreme Court thus rejected Ahrens’ construction of the jurisdictional
language in the habeas corpus statute:
Read literally, the language of [28 U.S.C.] § 2241(a) requires nothing more
than that the court issuing the writ have jurisdiction over the custodian. So
long as the custodian can be reached by service of process, the court can
issue a writ “within its jurisdiction” requiring that the prisoner be brought
before the Court for a hearing on his claim, or requiring that he be released
outright from custody, even if the prisoner himself is confined outside the
court’s territorial jurisdiction.
Id. at 495 (emphasis added).1
1 The government ignores this portion of Braden when it suggests that Chief
Judge Mukasey somehow used the Rules of Civil Procedure to “extend” the
jurisdiction of the habeas courts. Gov’t at 31. Because Braden held that the
8
By extending a federal court’s habeas jurisdiction to the limits of its ability
to serve process, Braden shifted the focus in forum challenges to factors such as
the convenience of the parties and witnesses and the connection of the underlying
claim to the forum. Nonetheless, the government’s interpretation of the habeas
statutes depends on resurrecting the Ahrens formalism discarded in Braden. Chief
Judge Mukasey was right to reject it and this Court should as well, just as it did in
Henderson v. I.N.S., 157 F.3d 106, 122 (2nd Cir. 1998).
A. THE SECRETARY OF DEFENSE, DONALD RUMSFELD,
IS A PROPER RESPONDENT
1. Modern Rules Of Habeas And Civil Procedure
Demonstrate That Secretary Rumsfeld Is A Proper
Respondent.
Chief Judge Mukasey correctly determined that Secretary Rumsfeld is a
proper respondent. “Section 2243 of Title 28 provides that the writ of habeas
corpus ‘shall be directed to the person having custody of the person detained,’ but
does not specify who the proper custodian is. 28 U.S.C. § 2243 (1994).”
statutory language requires a district court to examine whether the custodian can be
reached by service of process, Chief Judge Mukasey was required to look
somewhere to resolve this question. The district court looked to the two most
obvious places – the Federal Rules of Civil Procedure and the state long-arm
statute – and correctly so. Indeed, it is difficult to understand how else Chief Judge
Mukasey could have resolved the service of process question, and the government
does not provide any answers.
9
Henderson, 157 F.3d at 122.2 Other habeas corpus statutes and rules are similarly
phrased broadly in terms of a “custodian,”3 which can suggest someone with
broader control and authority than a mere “turnkey,” Ahrens v. Clark, 335 U.S. at
195 n. 3 (Rutledge, J., dissenting), and cannot reasonably mean that the “only”
proper party in a habeas corpus case is the jailer to the exclusion of all others with
substantially more authority and control over the prisoner’s custody.
In his dissent in Ahrens, 335 U.S. at 199-200,4 Justice Rutledge wrote that
the statutory language is sufficiently elastic to allow even the Attorney General to
be deemed the petitioner’s custodian for statutory purposes: “In view of his allpervasive
control over [prisoners’] fortunes, it cannot be doubted that he is a
2The Supreme Court in Ahrens v. Clark, 355 U.S. at 193, showed a “marked
reluctance” to decide whether the Attorney General is a proper respondent in a
habeas case even during a era marked by substantially more formalism than today.
Henderson, 157 F.3d at 124. Indeed, Henderson suggested that Braden found that
the Attorney General would have been a proper respondent in Ahrens, since the
Supreme Court defended the result in Ahrens only on venue grounds. Henderson,
157 F.3d at 127 n. 24.
3 28 U.S.C. § 2242 (habeas application shall include “the name of the person
who has custody over him and by virtue of what claim or authority, if known”);
Fed. R. Civ. P. 81(a)(2) (providing that a “writ of habeas corpus, or order to show
cause shall be directed to the person having custody of the person detained”); Fed.
Rules Governing Habeas Corpus Cases 2 (“the application shall be in the form of a
petition in which the state officer having custody of the applicant shall be named as
respondent”).
4 This Court has recognized the importance of Justice Rutledge’s dissent in
Ahrens in light of the fact that Braden has essentially adopted Justice Rutledge’s
flexible approach to habeas jurisdiction questions. Henderson, 157 F.3d at 126 n.
20.
10
proper party to resist an inquiry into the cause of restraint of liberty in their cases.”
“Jurisdictionally speaking,” wrote Justice Rutledge, “it is, or should be, enough
that the respondent named has the power or ability to produce the body when so
directed by the court pursuant to process lawfully issued and served upon him.”
Id. This sort of practical approach, Justice Rutledge wrote, is what courts have
long followed in habeas cases, since in the 1800’s it was “well known” that “the
term ‘jurisdiction’ was often used in the sense of ‘venue.’” Id., 335 U.S. at 203 n.
18, citing, In re Bickley, 3 Fed. Cas. 332 (S.D.N.Y. 1865).
The Supreme Court’s post-Ahrens jurisprudence has similarly explained that
“custodian” is “sufficiently broad” to account for the practical realities of the case
and the convenience of the parties and the witnesses. Strait v. Laird, 406 U.S. 341,
345-46 (1972). Strait concluded that a reservist seeking discharge as a
conscientious objector whose commanding officer was stationed in Indiana could
bring his habeas corpus in California, where he lived, on the theory that “Strait’s
commanding officer is ‘present’ in California through the officers in the hierarchy
of the command who processed this serviceman’s application for discharge.” 406
U.S. at 345-46.
One year after Strait, Braden applied a similarly functional approach to the
definition of “custody.” Although the Braden petitioner was physically
incarcerated in an Alabama prison, the habeas corpus action was filed in a United
11
States District Court in Kentucky and the only respondent named was the 30th
Judicial District of Kentucky. 410 U.S. at 486-87. The Supreme Court
nonetheless concluded that the district court in Kentucky possessed jurisdiction to
hear the case. 410 U.S. a 499-501. Significantly, Braden says nothing about the
failure to name the petitioner’s immediate custodian, suggesting that, contrary to
the government’s assertion, the immediate, physical custodian is not the only
proper (or even necessary) habeas respondent. Moreover, as Braden demonstrates,
other respondents, such as the 30th Judicial District of Kentucky, can be named.
Braden explained that an expanding definition of “custody” in habeas
doctrine required a more flexible approach to habeas jurisdiction, and to the
question of the proper custodian-respondent. Braden reasoned that, “A . . . critical
development since our decision in Ahrens is the emergence of new classes of
prisoners who are able to petition for habeas corpus because of the adoption of a
more expansive definition of the ‘custody’ requirement of the habeas statute.” 410
U.S. at 498. With such an expanded definition of habeas “custody,” id. at 498-99,
it is not credible to claim that the only proper habeas respondent is always the
prisoner’s immediate, physical custodian.5
5 The main case the government relies on to support its argument that the
only proper respondent in a habeas case is the immediate, physical custodian is
Wales v. Whitney, 114 U.S. 564, 574 (1885), Gov’t at 16, which stands for the
now-overruled proposition that a habeas petitioner admitted to bail is not “in
custody” for the purpose of the habeas statutes. Hensley v. Municipal Court, San
12
In fact, the Supreme Court has decided many other habeas corpus cases
involving named respondents besides the actual jailer, e.g., Garlotte v. Fordice,
515 U.S. 39, 42 (1995) (Governor of Mississippi); California Dep’t of Corrections
v. Morales, 514 U.S. 499 (1995) (California Department of Corrections);
Wainwright v. Greenfield, 474 U.S. 284 (1986) (Secretary of Florida Department
of Corrections), and in particular armed forces secretaries. E.g., Middendorf v.
Henry, 425 U.S. 25 (1976) (Secretary of the Navy); Strait v. Laird, 406 U.S. 341
(1972) (Secretary of Defense); Schlanger v. Seamans, 401 U.S. 487 (1971)
(Secretary of the Air Force); Parisi v. Davidson, 396 U.S. 1233 (1969) (Secretary
of the Army); United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955) (Secretary
of the Air Force); Burns v. Wilson, 346 U.S. 137 (1953) (Secretary of Defense).
In other words, “[h]istorically, the question of who is ‘the custodian’, and
therefore the appropriate respondent in a habeas suit, depends primarily on who
has the power over the petitioner and . . . on the convenience of the parties and the
court.” Henderson, 157 F.3d at 122. Although “the custodian for habeas purposes
has generally been the party in direct control of the petitioners,” Henderson
explained, “the concept of ‘in custody’ for habeas purposes has broadened in
recent years.” 157 F.3d at 124. “As a result,” this Court continued, “the rules
treating the immediate custodian as the only proper respondent and that person’s
Jose Milpitas Judicial District, 411 U.S. 345, 350 n. 8 (1973) (expressly overruling
Wales).
13
situs as the sole correct venue have not been applied consistently or in a rigid
fashion.” Id.
Henderson’s practical, flexible approach leads to the same result as an
analysis under Rules 17, 19, 20 & 21 of the Federal Rules of Civil Procedure. The
“Federal Rules of Civil Procedure [are] applicable as a general matter to habeas
[corpus] cases,” Slack v. McDaniel, 529 U.S. 473, 489 (2000) (applying Fed. R.
Civ. P. 41 to habeas corpus cases),6 unless applying the federal civil procedure
rules would be “inconsistent with the Habeas Corpus Rules.” Woodford v.
Garceau, 123 S.Ct. 1398, 1402 (2003). The government has shown no such
inconsistency here.7
Rules 17, 19, 20 & 21 govern the determination of the proper parties and
“eliminate formalistic labels that restricted many courts from an examination of the
practical factors of individual cases.” Wright & Miller, Federal Practice and
6 Miranda v. Bennett, 322 F.3d 171, 175 (2d Cir. 2003) (reciting rule and
applying Fed. R. Civ. P. 52); Ralls v. Manson, 503 F.2d 491, 496 n.5 (2d Cir.
1974) (concurrence) (applying Fed. R. Civ. P. 8).
7 The Supreme Court’s jurisprudence increasingly applying the Federal
Rules of Civil Procedure in habeas cases stems largely from the adoption, in 1976,
of Rule 12 of the Rules Governing Habeas Corpus Cases, which expressly
authorizes resort to the Federal Rules of Civil Procedure whenever “appropriate.”
The government ignores this jurisprudence and Rule 12, relying instead on Harris
v. Nelson, 394 U.S. 286, 295 (1969), a pre-habeas rules case, as creating some sort
of presumption that the civil procedure rules should have a “very limited
application to habeas corpus proceedings.” Gov’t at 31. This portion of Harris
has clearly been undermined both by the adoption of Rule 12 as well as Supreme
Court cases like Slack and Woodford.
14
Procedure § 1601 at 6 (3d ed. 2001)(discussing Rule 19). These rules ensure that
persons with a meaningful stake in the litigation will be brought before the court
when possible, Fed. R. Civ. P. 17 & 19, and permit the liberal joinder of parties.
Society of European Stage Authors and Composers, Inc. v. WCAU Broadcasting
Co., 1 F.R.D. 264, 266 (E.D. Pa. 1940). Indeed, this Court rejected pre-rules cases
to the contrary as products “of a formalism which we had thought long dead and
interred.” Kerr v. Compagnie de Ultramar, 250 F.2d 860, 862-63 (2d Cir. 1958).
Applying the Supreme Court’s interpretation of the habeas statutes and the
Federal Rules of Civil Procedure, Secretary of Defense Rumsfeld was properly
named as a respondent. Secretary Rumsfeld participated personally and
substantially in directing the actions that are the subject of the lawsuit, and he has
ultimate control over petitioner’s custody. This case originated from Secretary
Rumsfeld’s conduct within the Southern District of New York, and thus his
conduct in that district has made it the appropriate one with respect to the location
of the witnesses and evidence. Nor can Secretary Rumsfeld, who is ably
represented in New York by both United States Attorneys and the Department of
Justice, identify any sort of inconvenience, to himself or to the United States, from
defending his conduct in the judicial district his agents entered (at his direction) in
order to remove Mr. Padilla.
15
In addition, because this case arises out of unique, forum-related conduct, a
conclusion that Secretary Rumsfeld is a proper respondent will neither increase the
number of habeas petitions generally filed in the Southern District of New York
nor encourage forum-shopping by habeas petitioners with little connection to the
forum. By contrast, refusing to allow Secretary Rumsfeld to be named as a proper
party would encourage forum-shopping by the government, which has exclusive
control of who a habeas petitioner’s “jailer” will be. See Vasquez v. Reno, 233
F.3d 688, 696 (1st Cir. 2000) (noting that Attorney General might properly be
considered a respondent in a habeas corpus case if the government “spirited [the
petitioner] from one site to another in an attempt to manipulate jurisdiction.”). It is
not coincidental that the government is seeking to transfer this action to the only
circuit in which it has prevailed so far on similar issues, in Hamdi v. Rumsfeld, 316
F.3d 450 (4th Cir. 2003). Indeed, the government is pursuing a strategy of seeking
to transfer many such enemy combatant cases to the same circuit. See, e.g., Al-
Marri v. Bush , et al., 2003 WL 21789542 (C.D. Ill. 2003) (dismissing habeas
petition after petitioner transferred to naval brig in South Carolina). The
government cannot have failed to realize that if it succeeds in trying all of these
cases in one circuit, it will never create a circuit split, thereby making Supreme
Court review less likely, see Sup. Ct. R. 10.
16
This case may not be fully resolved if Mr. Padilla names only his immediate
physical custodian. Mr. Padilla’s immediate warden is not holding him pursuant to
the order of a court, but pursuant to the determination of the executive. She could
thus be faced with conflicting orders – from the court and from her superior
officer. It is not clear that Cmmdr. Marr could or would release Mr. Padilla even if
ordered to do so by a court, because she is legally obligated to obey the orders of
her superior officers. See 10 U.S.C. § 892 (2003). To conclude that Commander
Marr is the only proper respondent, when, in fact, she is simply a link in the chain
of command that holds Mr. Padilla, is to “exalt fiction over reality.” Strait, 406
U.S. at 345.
2. The Case Law Advocating A More Rigid Definition Of
“Custodian” Arises Out Of Concerns About Forum-shopping
By Federal Prisoners In Run-Of-The-Mill Habeas Cases.
Amicus acknowledges the authority for the government’s narrow definition
of “custodian.” In the 30 years since Braden, some federal courts have reverted to
the formalistic jurisdictional rules of Ahrens v. Clark, with the District of
Columbia courts leading the way. See, e.g., Chatman-Bey v. Thornburgh, 864 F.2d
804, 813 (D.C. Cir. 1988)(en banc)(dicta); Meese v. Guerra, 786 F.2d at 414 (D.C.
Cir. 1986); Monk v. Secretary of the Navy, 793 F.2d 364, 369 (D.C. Cir. 1986). In
17
the early years after Braden, the D.C. Circuit recognized Braden’s import,8 perhaps
most notably in Eisel v. Secretary of the Army, 477 F.2d 1251, 1254 (D.C. Cir.
1973), which explained that the proper forum in a habeas corpus should be
determined “by analyzing the policies for and against allowing an action in a
particular jurisdiction, rather than by the blind incantation of words with magical
properties, such as ‘immediate custodian.’” Eisel, 477 F.2d at 1254 (emphasis
added).
Later, however, it became increasingly clear that the District of Columbia
Circuit possessed unique reasons for returning to the Ahrens regime. As the facts
of Ahrens demonstrate, virtually every habeas corpus case can claim some District
of Columbia connection because every federal prisoner in the country is formally
in the custody of the Attorney General, 18 U.S.C. § 4001(b), and the Attorney
General has delegated day-to-day control over virtually every federal prisoner to
the Federal Bureau of Prisons. 18 U.S.C. §§ 4001(b)(1) & 4041, 4042. Because
every federal prisoner can allege some nominal D.C. connection to his habeas case,
the District of Columbia courts have been especially sensitive to potential
problems of caseload and prisoner forum-shopping.
8 See also McCall v. Swain, 510 F.2d 167, 175-76 (D.C. Cir. 1975); Reese v.
United States Board of Parole, 498 F.2d 698, 700 (D.C. Cir. 1974); Wren v.
Carlson, 506 F.2d 131, 133-34 (D.C. Cir. 1974).
18
The District of Columbia courts have thus exploited Ahrens’ formalistic
jurisdictional analysis as a bright-line way of stopping the potentially unlimited
flow of federal prisoner habeas petitions lacking any real connection to the District
of Columbia. E.g., Meese v. Guerra, 786 F.2d at 415-17; Monk v. Secretary of the
Navy, 793 F.2d at 369. This same result should have been reached through a venue
analysis. Braden focused on considerations of convenience to the parties and
witnesses, and counseled that “in many instances the district in which petitioners
are held will be the most convenient forum for the litigation of their claims.”
Braden, 410 U.S. at 500.
Courts advocating rigid jurisdictional rules, see Vasquez v. Reno, 233 F.3d
688, have ignored the controlling precedent in Strait and Braden, which requires a
flexible assessment of jurisdictional forum rules that is “sufficiently broad” to
ensure litigation in the most convenient forum. Strait v. Laird, 406 U.S. at 345-46;
Braden v. 30th Judicial Circuit Court, 410 U.S. at 498-500. In addition, to the
extent that these lower court cases suggest that no authority exists for allowing any
party other than the warden to participate in a habeas case, they are demonstrably
wrong, as shown above.
Most of the results in the government’s cases can be justified under the
practical approach required by Strait and Braden, and adopted in Henderson. See
Braden, 410 U.S. at 500. Many of the cases invoking these formalisms involve
19
lawsuits in which the underlying facts have nothing to do with the desired forum,
where the named respondent is only a nominal actor in the case. We know of no
court that has adopted a rigid formalistic analysis on jurisdictional facts like these,
in which the district court possessed a substantial connection to both the subject
matter and the parties to the lawsuit. Thus, courts claiming that exercising
jurisdiction in cases like this one would rewrite the habeas statutes, see Vasquez,
233 F.3d at 693-96, are out of step with the Supreme Court.
B. THE TRIAL JUDGE PROPERLY EXERCISED PERSONAL
JURISDICTION OVER SECRETARY RUMSFELD
The lower court properly exercised personal jurisdiction over Secretary
Rumsfeld. Although the government insists that the language of 28 U.S.C. § 2241
limits federal courts’ ability to exercise both subject matter and personal
jurisdiction, the Supreme Court rejected comparable formalistic arguments by
habeas corpus respondents in cases beginning with Schlanger v. Seamans, 401 U.S.
487 (1971), continuing through Strait v. Laird, 406 U.S. 341, and culminating in
Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484. The decisions in
Strait, 406 U.S. at 345 n. 2 and Braden, 410 U.S. at 495, specifically, demonstrate
that, far from interpreting § 2241 as a statutory limit on habeas courts’ ability to
exercise personal jurisdiction, the Supreme Court applies general principles of
personal jurisdiction in the habeas context.
20
The Supreme Court’s personal jurisdiction doctrine has graduated from a
territorial concept of jurisdiction, Pennoyer v. Neff, 95 U.S. 714 (1877), to a more
flexible analysis of a defendant’s “minimum contacts” with the forum and whether
the exercise of jurisdiction, in light of these contacts, would be consistent with
“traditional notions of fair play and substantial justice,” International Shoe Co. v.
State of Washington, 326 U.S. 310 (1945). Under this framework, the Court has
“consistently rejected the notion that an absence of physical contacts can defeat
personal jurisdiction”, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476 (1985),
looking instead to whether the defendant has “purposefully established minimum
contacts in the forum State,” Asahi Metal Industry Co. v. Superior Court of
California, 480 U.S. 102, 108-09 (1987) (internal quotation marks omitted).
Whether a court can exercise personal jurisdiction has become intertwined
with the question of whether a defendant is reachable by service of process under
Fed. R. Civ. P. 4. Wright & Miller, supra, § 1063 at 327. This is because Fed. R.
Civ. P. 4(k)(1) provides in part that, “Service of a summons or filing a waiver of
service is effective to establish jurisdiction over the person of a defendant . . . who
could be subjected to the jurisdiction of a court of general jurisdiction in the state
in which the district court is located.” Fed. R. Civ. P. 4(k)(2) goes yet further,
stating that, in a case “arising under federal law,” service of a summons or an
effective waiver of services is effective to establish personal jurisdiction even over
21
the person of any defendant who is not subject to the jurisdiction of the courts of
general jurisdiction of any state “[i]f the exercise of jurisdiction is consistent with
the Constitution and laws of the United States.”
The Supreme Court’s habeas jurisprudence makes clear that its modern
doctrine of personal jurisdiction is applicable in the habeas context. As early as
1944, the Supreme Court indicated that a district court could exercise personal
jurisdiction over a custodian located outside of its territorial district, provided that
the custodian was reachable by service of process. In Ex parte Mitsuye Endo, 323
U.S. 283 (1944), the Supreme Court explained that, “[t]he decree of the court [may
be] made effective if a respondent who has custody of the prisoner is within reach
of the court’s process even though the prisoner has been removed from the district
since the suit was begun.” 323 U.S. at 307.
In Strait, decided one year before Braden, the Supreme Court reaffirmed this
point. After concluding that Strait’s commanding officer was “present” in
California through the hierarchy of the chain of command, the Strait court invoked
modern principles of personal jurisdiction, explaining “[t]hat such ‘presence’ may
suffice for personal jurisdiction is well settled. McGee v. Int’l Life Ins. Co., [355
U.S. 220]; Inter’l Shoe Co. v. Washington, [326 U.S. 310].” 406 U.S. at 345 n2.
“In Ex parte Endo . . . we said that habeas corpus may issue ‘if a respondent who
has custody of the prisoner is within reach of the court’s process,’” wrote the Strait
22
Court. “Strait’s commanding officer is ‘present’ in California through his contacts
in that State; he is therefore ‘within reach’ of the federal court in which Strait filed
his petition.” Id.
In Braden, the Supreme Court confirmed once again that the personal
jurisdiction analysis in the habeas context is no different than in any other civil
case. “So long as the custodian can be reached by service of process,” wrote the
Braden Court, “the court can issue a writ ‘within its jurisdiction’ requiring that the
prisoner be brought before the court for a hearing on his claim, or requiring that he
be released outright from custody, even if the prisoner himself is confined outside
the court’s territorial jurisdiction.” Braden, 410 U.S. at 495.
Indeed, if, as the government claims, the language of the habeas statute,
which states that district courts may grant writs “within their respective
jurisdictions,” 28 U.S.C. § 2241 (a), means that the reach of district courts’ habeas
jurisdiction is limited to their territorial districts, Gov’t at 27, Braden’s holding that
district courts possess jurisdiction to decide habeas petitions on behalf of prisoners
located outside of their territorial districts would be meaningless. If the prisoner is
located outside of the court’s district, he will quite often, as was true in Braden, be
in the custody of an immediate, physical custodian. At the same time, the habeas
petition may test the lawfulness of the “custody” imposed by another, legal
custodian, as it did in Braden, in which a detainer was at issue. If the district court
23
deciding the petition lacks jurisdiction to direct the immediate, physical custodian
whether he should give effect to the challenged legal custody, then Braden would
be meaningless.
Braden’s recognition of the existence of concurrent habeas jurisdiction also
undermines the government’s claim that “there is only one district court with
territorial jurisdiction in any given case.” Gov’t at 27. In Braden, while
concluding that the petitioner’s habeas corpus claim could be litigated in the
district that had issued the detainer that he challenged, the Supreme Court
nonetheless expressly recognized that, “Nothing in this opinion should be taken to
preclude the exercise of concurrent habeas corpus jurisdiction over the petitioner’s
claim by a federal district court in the district of confinement.” 410 U.S. at 499
n.15. The Court recognized that the choice among districts possessing jurisdiction
could be made on traditional venue grounds, stating, “Where a prisoner brings an
action in the district of confinement . . . the court can, of course, transfer the suit to
a more convenient forum.” Id.
Contrary to the government’s claim that Braden only “partially” overruled
Ahrens, leaving intact the requirement that the custodian be present in the court’s
territorial district, Gov’t at 29, Braden’s discussion of how traditional venue
considerations could have been applied to reach the same result in Ahrens also
reaffirms that district courts must be able to reach custodians outside of their
24
territorial districts, because the Court describes both the District of Columbia and
the Eastern District of New York as potential venues for the habeas case. “On the
facts of Ahrens itself, for example,” wrote the Braden Court, “petitioners could
have challenged their detention by bringing an action in the Eastern District of
New York against the federal officials who confined them in that district.” 410
U.S. at 500. “No reason is apparent,” the Court continued, “why the District of
Columbia would have been a more convenient forum . . . .” Id.
Decisions of the Courts of Appeals recognizing “exceptions” to ostensibly
jurisdictional rules also demonstrate that, when those courts speak of
“jurisdiction,” they are actually discussing bright-line venue rules. See, e.g.,
McCall v. Swain, 510 F.2d 167, 175-77 (D.C. Cir. 1975) (U.S. District Court for
the District of Columbia possessed jurisdiction to determine habeas claims filed by
prisoners incarcerated at Lorton, Virginia); Demjanjuk v. Meese, 784 F.2d 1114,
1115-1116 (D.C. Cir. 1986) (D.C. Circuit can exercise jurisdiction to determine
habeas petition filed by prisoner held in undisclosed location). “If absence of the
body detained from the territorial jurisdiction of the court having jurisdiction of the
jailer creates a total and irremediable void in the court’s capacity to act, what
lawyers call jurisdiction in the fundamental sense,” Justice Rutledge wrote in
Ahrens, “then it is hard to see how that gap can be filled by such extraneous
considerations as whether there is no other court in the place of detention from
25
which remedy might be had . . . .” 335 U.S. at 209 (Rutledge, J., dissenting). As
Chief Judge Mukasey put it in the hearing on this matter on July 31, 2002, the
government’s jurisdictional theory “doesn’t hold all the time. It holds when it’s
convenient; it doesn’t hold when it’s inconvenient.” A75. Accordingly, these
limiting principles cannot truly be jurisdictional.
In Henderson, this Court recognized the principles announced by the
Supreme Court, explaining that under Braden, “a court has personal jurisdiction in
a habeas case so long as the custodian can be reached by service of process.”
Henderson, 157 F.3d at 122, quoting in part, Braden v. 30th Judicial Circuit Court,
410 U.S. at 495. This Court then identified the pertinent jurisdictional question as
being whether the federal courts in New York could serve process under the New
York long-arm statute, N.Y. C.P.L.R. § 302(a)(1),9 on the District Director of the
Immigration and Naturalization Service, whose office was located in New Orleans,
Louisiana, based on his contacts with an alien residing in the state of New York.
See Henderson, 157 F.3d at 123-24. The Court indicated that the District Director
may well have “purposely availed himself” of the privilege of conducting business
9 That section provides, in pertinent part:
“(a) Acts which are the basis of jurisdiction. As to a cause of action arising
from any of the acts enumerated in this section, a court may exercise personal
jurisdiction over any non-domicilliary, or his executor or administrator, who in
person or through an agent: (1) transacts any business within the state . . . .”
26
in New York, but then certified this question concerning the long-arm statute to the
New York Court of Appeals.10 Id. at 124.
Relying on Henderson, Chief Judge Mukasey also looked to § 302(a)(1) in
deciding whether the Court could exercise personal jurisdiction over Secretary
Rumsfeld. As the district court concluded, 233 F.Supp.2d at 587, the statutory
analysis is “not complex”: Section 302(a)(1) authorizes jurisdiction “over any nondomicilliary
. . . who in person or through an agent . . . transacts any business
within the state.” N.Y. C.P.L.R. § 302(a)(1). This language “take[s] advantage of
the new jurisdictional enclave opened up by International Shoe where the
nonresident defendant has engaged in some purposeful activity in this State in
connection with the matter in suit.” Longines-Wittnauer Watch Co. v. Barnes &
Reinecke, Inc., 261 N.Y.S. 2d 8, 18 (N.Y. 1965). The “'transacts business' clause
of the long-arm statute gives New York personal jurisdiction over a nondomiciliary
if two conditions are met: first, the non-domiciliary must 'transact
business' within the state; second, the claims against the non-domiciliary must arise
out of that business activity.” CutCo Industries v. Naughton, 806 F.2d 361, 365
(2d Cir. 1986). Moreover, under § 302(a)(1), “proof of one transaction in New
York is sufficient to invoke jurisdiction, even though the defendant never enters
New York, so long as the defendant's activities [in New York] were purposeful and
10 The long-arm question was never finally resolved during the Henderson
litigation. See Yesil v. Reno, 175 F.3d 287, 288-89 (2d Cir. 1999).
27
there is a substantial relationship between the transaction and the claim asserted.”
Kreutter v. McFadden Oil Corp., 527 N.Y.S. 2d 195, 198-99 (N.Y. 1988). Chief
Judge Mukasey was correct in applying this legal standard.
These rules provide jurisdiction over Secretary Rumsfeld because his agents
entered the Southern District of New York to take custody of Mr. Padilla, and that
conduct forms the subject matter of this lawsuit. Chief Judge Mukasey
accordingly was undoubtedly correct when he found that jurisdiction existed under
the long-arm statute over Secretary Rumsfeld and that, “There is no denial of due
process in finding personal jurisdiction under the circumstances.” Padilla v. Bush
et al., 233 F.Supp.2d at 587.
The district court would have been correct in finding personal jurisdiction
over Commander Marr as well. Commander Marr took a prisoner into custody
knowing that, to secure that custody, Department of Defense agents entered into
the Southern District of New York and captured the prisoner, who was being held
on a federal warrant there. Through this contact, Commander Marr “purposely
thrust [herself] into the Southern District of New York” within the meaning of the
New York long-arm statute, in such a way as to make her “present” in New York
for the purpose of this lawsuit, which focuses entirely on the legality or illegality of
petitioner’s capture and arrest in New York.
28
The district court could also have reached either Secretary Rumsfeld or
Commander Marr with service of process without resort to the New York long-arm
statute. Among the “alternative possibilities for obtaining jurisdiction” in cases
like this one, Yesil v. Reno, 682 N.Y.S. 2d 663, 663-64 (N.Y. 1998) (on
certification from Henderson), is Rule 4(i) of the Federal Rules of Civil Procedure.
Rule 4(i) provides specifically for the service of process upon “officers or
employees of the United States” in their official capacities, and permits such
service to be effected in part by “delivering a copy of the summons and of the
complaint to the United States attorney for the district in which the action is
brought . . . .” See Zankel v. United States, 921 F.2d 432, 434 (2d Cir. 1990);
Gargano v. Internal Rev. Service, 207 F.R.D. 22, 22-23 (D. Mass. 2002). This
provision reflects the reality that requiring the government to defend governing
officials throughout the country is both fairer to citizens and not a burdensome
imposition on the government. Wright & Miller, supra, § 1107 at 20-21 & 26 n.
23.
In other words, Rule 4(i) simply recognizes that United States officials,
when sued in an official capacity, are different from private litigants, who often
have tangible personal interests at stake and for whom it is more difficult to mount
defenses in locations far outside their district of residence. Personal jurisdiction
doctrine arises from the limits that due process places on state courts’ personal
29
jurisdiction over individuals and corporations, and addresses concerns about the
fairness of haling individual people and private corporations into courts in fardistant
states. See, e.g., Asahi Metal Industry Co. v. Superior Court of California,
480 U.S. 102 (1987); Kulko v. Superior Court of California, 436 U.S. 84 (1978).
Such fairness concerns have no force where the defendants are federal officers
being summoned into a federal court to defend a case arising under federal law.
These jurisdictional facts demonstrate the wisdom of provisions like Rule
4(i). Respondents are being sued in their official capacities and cannot claim any
hardship in defending themselves in New York because, as noted above, the
United States is ably represented in every federal judicial district. By contrast, this
case has absolutely no connection to South Carolina; indeed, the government’s
proffers to the district court indicate that South Carolina was selected as a place to
confine Mr. Padilla precisely because he has no connections (and no lawyers) at all
there. The United States is thus invoking personal jurisdiction rules here in way
that seems designed to force Mr. Padilla to bring his habeas corpus case in the
most inconvenient forum possible – an obviously inappropriate use of rules that
were designed precisely to prevent this sort of unfairness.
30
CONCLUSION
Modern Supreme Court jurisprudence and this Court’s decision in
Henderson make clear that Chief Judge Mukasey’s authority under 28 U.S.C.
§ 2241 is sufficiently broad and flexible to allow him to require Secretary
Rumsfeld to defend the legality of having directed his agents to enter the district
and forcibly remove a prisoner for transfer to a military prison.
Respectfully submitted,
James W. Klein
Giovanna Shay
*Timothy P. O’Toole
PUBLIC DEFENDER SERVICE
633 Indiana Avenue, NW
Washington, DC 20004
(202) 628-1200
*Counsel of Record for Amicus
Curiae Public Defender Service for
the District of Columbia
31
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations of Fed. R. App. P.
32(a)(7)(B) because it contains 6957 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32 (a)(7)(B). This brief complies with the type-face
requirements of Fed. R. App. 32(a)(5) and the type-style requirements of Fed. R.
App. P. 32(a)(6) because it has been prepared in a proportionally spaced type-face
program using Word 2000 in Times New Roman 14 point font.
_______________________
Timothy P. O’Toole
*Counsel of Record for Amicus
Curiae Public Defender Service for
the District of Columbia
32
CERTIFICATE OF SERVICE
This is to certify that on the ___ day of August, 2003, a copy of the
foregoing was sent postage pre-paid by Federal Express to all of the counsel of
record as follows:
Andrew G. Patel, Esq.
13th Fl.
Law Office of Andrew G. Patel, Esq.
111 Broadway
New York, NY 10006
212-349-0230
Donna R. Newman, Esq.
Suite 1103
Law Office of Donna R. Newman, Esq.
121 W. 27th St.
New York, NY 10001
212-229-1516
Attorneys for Jose Padilla, Petitioner-Appellee-Cross-Appellant
Christine H. Chung, Esq.
U.S. Attorney’s Office
Southern District of New York
Attn: Brenda Lewis, Legal Secretary
1 St. Andrews Plaza
New York, NY 10007
212-637-2271
Paul D. Clement, Esq.
U.S. Dept. of Justice
Office of the Solicitor General
950 Pennsylvania Ave. NW
Washington, DC 20530
Attorneys for Respondent-Appellant-Cross-Appellee Donald Rumsfeld
___________________________
Timothy P. O’Toole
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