                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-2011


MAMMAR AMEUR,

                Plaintiff - Appellant,

           v.

ROBERT M. GATES, in his individual capacity; DONALD RUMSFELD, in
his individual capacity; PAUL WOLFOWITZ, in his individual
capacity; GORDON ENGLAND, in his individual capacity; JAMES M.
MCGARRAH, in his individual capacity; RICHARD B. MYERS, in his
individual capacity; PETER PACE, in his individual capacity;
MICHAEL GLENN MULLEN, “Mike”, in his individual capacity; JAMES
T. HILL, in his individual capacity; BANTZ CRADDOCK, in his
individual capacity; GEOFFREY D. MILLER, in his individual
capacity; JAY HOOD, in his individual capacity; HARRY B. HARRIS,
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; WADE DENNIS, in his individual
capacity; BRUCE VARGO, in his individual capacity; ESTEBAN
RODRIGUEZ, in his individual capacity; DANIEL 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.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:12−cv−00823−GBL−TRJ)


Argued:   May 13, 2014                    Decided:   July 16, 2014


Before TRAXLER, Chief Judge, and MOTZ and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Chief Judge Traxler and Judge Motz joined.


ARGUED: Gwynne Lynette Skinner, WILLAMETTE UNIVERSITY COLLEGE OF
LAW, Salem, Oregon, for Appellant. Sydney Foster, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.       ON
BRIEF: Stuart F. Delery, Assistant Attorney General, Matthew M.
Collette, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C.; Dana J. Boente, Acting United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellees.




                               2
AGEE, Circuit Judge:

     In     2003,    United      States         military        personnel     detained

suspected      terrorist   Mammar       Ameur       at     a     military     base   in

Afghanistan and, later, at a facility in Guantanamo Bay, Cuba.

Although Ameur was determined to be an “enemy combatant,” he was

eventually released to his native country of Algeria in 2008.

     After being released, Ameur brought suit in district court

against   former     Secretary    of    Defense         Robert     Gates    and   other

federal officials allegedly involved in his detention.                         Ameur’s

complaint requested monetary damages under the Alien Tort Claims

Act, 28 U.S.C. § 1350, the Religious Freedom Restoration Act, 42

U.S.C.    §§   2000bb–bb-4,      and    the       United       States   Constitution.

Applying a provision of the Military Commissions Act of 2006

(“MCA”), 28 U.S.C. § 2241(e)(2), the district court dismissed

the complaint for lack of subject matter jurisdiction.

     On appeal, Ameur contends that the district court erred in

relying on an MCA provision that he argues the Supreme Court

invalidated     in   Boumediene        v.       Bush,    553     U.S.   723    (2008).

Additionally, he maintains that the relevant MCA provision was

unconstitutionally applied in his case, even if Boumediene did

not explicitly invalidate the MCA statute.

     For the reasons discussed below, we affirm the district

court’s decision.



                                            3
                                     I.

                                     A.

     Ameur’s complaint alleges that he was first detained in

2002 by Pakistani authorities. 1          Later, Ameur was transferred to

American military custody at Bagram Airfield in Afghanistan.               In

March 2003, he was moved to detention facilities at the U.S.

Naval Base in Guantanamo Bay, Cuba.

     Ameur     alleges   that   he   suffered      mistreatment   and   abuse

during each of his various detentions and transfers.              At Bagram,

for instance, Ameur was purportedly beaten, attacked by dogs,

subjected to harsh lights and music, interrogated, placed into

stress   positions,      and    deprived      of     religious    materials.

Similarly harsh abuse allegedly continued at Guantanamo until

his release.

     In 2004, during his detention at Guantanamo, a Combatant

Status Review Tribunal (“CSRT”) determined that Ameur was an

“enemy combatant.” 2     As an “enemy combatant,” Ameur was found to


     1
       Because the district court disposed of Ameur’s complaint
at the motion-to-dismiss stage, we “accept[] all well-pled facts
as true and construe[] these facts in the light most favorable
to    the    plaintiff.”        Nemet    Chevrolet,    Ltd.   v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
     2
        CSRTs   are  “executive-branch   tribunals convened to
determine the status of Guantanamo detainees.” Janko v. Gates,
741 F.3d 136, 138 (D.C. Cir. 2014); see also Al-Nashiri v.
MacDonald, 741 F.3d 1002, 1004–05 (9th Cir. 2013) (discussing
Department of Defense orders establishing CSRTs).


                                      4
have been a “part of or supporting Taliban or al Qaida forces,

or associated forces that are engaged in hostilities against the

United States or its coalition partners.”                       Bismullah v. Gates,

514 F.3d 1291, 1297 n.8 (D.C. Cir. 2008) (quoting Department of

Defense regulations).           Although Ameur alleges that the CSRT’s

decision was unsupported, his designation as an enemy combatant

remains unchanged.

      In    August    2005,     an    Administrative          Review   Board     (“ARB”)

recommended that Ameur was eligible for discretionary release, 3

but   did     not     reverse        Ameur’s       enemy-combatant       designation.

Rather, the ARB determination was premised “on an assessment of

various factors, including the continued threat posed by each

detainee.”          Janko,    741     F.3d        at   138    n.2   (quotation     marks

omitted).     Ameur was eventually released and transferred to his

native Algeria in 2008.

                                             B.

      Three   years     after    his     release,        in   2011,    Ameur   filed   a

complaint in the U.S. District Court for the Western District of


      3
       The executive branch created ARBs “to assess annually the
need to continue to detain each enemy combatant during the
course of the current and ongoing hostilities.”       Associated
Press v. U.S. Dep’t of Def., 554 F.3d 274, 279 n.1 (2d Cir.
2009). This process permits each enemy combatant at Guantanamo
“to explain why he is no longer a threat to the United States
and its allies in the ongoing armed conflict against Al Qaida
and its affiliates and supporters or to explain why his release
would otherwise be appropriate.” Id.


                                             5
Washington.        His complaint contained claims against Gates, 21

other current and former Department of Defense officials, and

100 unnamed “John Doe” federal officials in their individual

capacities.       The Washington district court first dismissed all

of Ameur’s claims -- except those claims against Gates -- for

lack of personal jurisdiction.                 Then, finding that many of the

decisions    described      in     Ameur’s      complaint       were    made     at   the

Pentagon, the district court transferred the case to the Eastern

District of Virginia.

      Once   the    case    was    transferred,         Ameur    filed      an    amended

complaint.    This amended complaint reasserted claims against all

the   original      defendants,       contending         that      they     performed,

endorsed, commanded, or supported various unlawful acts during

Ameur’s   detention.         Ameur    alleged         that   these     acts      violated

customary international law, the Geneva Conventions, the First

and Fifth Amendments, and the Religious Freedom Restoration Act.

The complaint sought compensatory and punitive monetary damages.

      Invoking the Westfall Act, 28 U.S.C. § 2679, the United

States    substituted      itself    for       all    defendants       as   to   Ameur’s

claims    under     the    Alien    Tort       Claims    Act.        The    Government

certified    that    the    defendants         were   federal     employees       acting

within the scope of their employment when they performed the

acts alleged in Ameur’s complaint.               See 28 U.S.C. § 2679(d).



                                           6
     The United States and the individual defendants then filed

a motion to dismiss, which the district court granted.                         See

Ameur v. Gates, 950 F. Supp. 2d 905, 913 (E.D. Va. 2013).                      The

district court determined that 28 U.S.C. § 2241(e)(2) deprived

it of subject matter jurisdiction, as Ameur was detained as an

enemy    combatant   and    his   claims      concerned     his    treatment   in

detention.     Id.   at    910–13;     see    also   28   U.S.C.   §   2241(e)(2)

(barring non-habeas-corpus actions brought by certain detainees

challenging the conditions of their detention).                    Furthermore,

the district court held that sovereign immunity barred Ameur’s

international-law    claims,      as    the    United     States   had   properly

substituted itself as a defendant to those claims. 4

     Ameur timely appealed, and we have jurisdiction under 28

U.S.C. § 1291.



                                       II.

     This appeal considers the effect of one portion of the MCA

codified at 28 U.S.C. § 2241(e). Section 2241(e) 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

     4
       In a footnote, the district court also noted that Ameur
had failed to plead that he had administratively exhausted his
international-law claims, providing an additional reason to
dismiss them.


                                        7
       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), 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.

       In Boumediene, the Supreme Court struck down § 2241(e)(1)

as an unconstitutional suspension of the writ of habeas corpus.

But § 2241(e)(2), which bars plaintiffs like Ameur from bringing

“any other action,” does not implicate habeas corpus.

       If § 2241(e)(2) applies to Ameur’s claims, then courts lack

subject matter jurisdiction to hear them.               See, e.g., Aamer v.

Obama, 742 F.3d 1023, 1028–29 (D.C. Cir. 2014); Al-Nashiri, 741

F.3d at 1006–07.        When a district court dismisses for lack of

subject   matter      jurisdiction,   as   in   the   case    before   us,   “we

review the district court’s factual findings with respect to

jurisdiction for clear error and the legal conclusion that flows

therefrom de novo.”          In re KBR, Inc., Burn Pit Litig., 744 F.3d

326,    333    (4th   Cir.    2014)   (quotation      marks   and   alteration

omitted).       We must decide this jurisdictional issue before any

others.       See Steel Co. v. Citizens for a Better Env’t, 523 U.S.




                                       8
83, 94 (1998) (“Without jurisdiction the court cannot proceed at

all in any cause.” (quotation marks omitted)).

       Section 2241(e)(2)’s plain terms bar Ameur’s suit, and he

does not argue to the contrary.                    Ameur’s action is one “other”

than    habeas       corpus,    which   is         discussed    in    the     preceding

subsection, § 2241(e)(1).           It is against “agents” of the United

States, in that all the defendants were government personnel at

the time of the relevant events.                   See Hamad v. Gates, 732 F.3d

990, 990–91, 995 (9th Cir. 2013) (finding that detainee’s suit

against same defendants was “against the United States or its

agents”).       The complaint relates only to Ameur’s “detention,

transfer, treatment, trial, or conditions of confinement” during

his “detention by the United States.”                       And a CSRT panel has

determined that Ameur was an “enemy combatant.”                       See Janko, 741

F.3d    at     144     (holding     that       a     CSRT     determination      is   a

determination by the United States under § 2241(e)(2)); Hamad,

732 F.3d at 995 (same).            Finally, Ameur does not bring his suit

under the identified provisions of the Detainee Treatment Act

(“DTA”),      which     formerly    permitted         suits    seeking      review    of

certain CSRT determinations and military commission decisions in

the U.S. Court of Appeals for the D.C. Circuit.                       See DTA, Pub.

L.   No.     109–148,    §     1005(e)(2)–(3),        119     Stat.   2680,    2741–42

(2005).



                                           9
        Conceding that his claims come within the plain terms of

§ 2241(e)(2),          Ameur     instead      argues       that   the     jurisdiction-

stripping       provision      is    invalid.         He    posits   two       independent

grounds for his position: (1) the Supreme Court has expressly

invalidated § 2241(e)(2); or (2) even if the statute has not

been directly rejected, it is nevertheless non-severable from

§ 2241(e)(1),            which         has          been      expressly           declared

unconstitutional.         We address these arguments in turn.



                                             III.

        Initially, Ameur contends that the Supreme Court expressly

struck down § 2241(e)(2) in Boumediene.                     We disagree.

        In    Boumediene,      the    Supreme       Court    addressed     an     entirely

separate part of the MCA –- § 2241(e)(1), which solely concerns

habeas       corpus.     The     Court     first     observed     that     §    2241(e)(1)

stripped courts of jurisdiction to hear habeas actions brought

by aliens held at Guantanamo.                 553 U.S. at 736–38.              Then, after

surveying the history of the writ, the Court determined that

habeas corpus did extend to aliens held at Guantanamo.                                Because

Guantanamo detainees were entitled to habeas review, the Supreme

Court        concluded    that       § 2241(e)(1)’s         denial   of        that    right

implicated Article I, section 9 of the Constitution –- often

termed the Suspension Clause.                 Id. at 771; see also U.S. Const.

art. I, § 9, cl. 2 (“The Privilege of the Writ of Habeas Corpus

                                             10
shall not be suspended, unless when in Cases of Rebellion or

Invasion the public Safety may require it.”).                The Court further

concluded that aliens held at Guantanamo were not afforded any

adequate substitute for habeas corpus, 553 U.S. at 792, and,

lacking that substitute, “§ 7 of the [MCA], 28 U.S.C. § 2241(e),

operate[d] as an unconstitutional suspension of the writ.”                    Id.

at 733.

       Despite its unrestricted reference to § 2241(e) in that one

sentence, the Supreme Court’s sole focus in Boumediene was the

effect of the Suspension Clause on § 2241(e)(1), as the only

matter before the Court was an application for a writ of habeas

corpus.     But § 2241(e)(2) –- the section we are concerned with

here -- relates strictly to actions “other” than habeas.                      For

that    reason,    Boumediene     did     not      address   the   validity    of

§ 2241(e)(2).      And because § 2241(e)(2) does not limit, discuss,

relate to, or otherwise touch upon the writ, it could not be

said to “suspend” it.           Therefore, § 2241(e)(2) lacks any nexus

to the rationale adopted by the Supreme Court in Boumediene.

See Aamer, 742 F.3d at 1030 (“[S]ection 2241(e)(2) has no effect

on habeas jurisdiction, and thus the Suspension Clause is not

relevant    and    does   not    affect      the   constitutionality    of    the

statute.” (quotation marks omitted)); see also, e.g., Swain v.

Pressley,    430   U.S.   372,    380–82      (1977)   (explaining     that   the



                                        11
Suspension       Clause       is    violated        only    where    habeas       corpus     is

rendered “inadequate or ineffective”).

        Even    so,    Ameur       seizes     on    some    of     the    Court’s     broader

language       –-     for      instance,           the     quotation       recited      above

referencing the entire MCA Section 7 -- and insists that the

Court invalidated more than just the habeas-related provision of

§ 2241(e)(1). 5        Two of our sister circuits have already rejected

this formalistic argument.                  We must do so as well.                See Hamad,

732 F.3d at 1000 (“[T]he logic and context of the opinion make

clear      that        the         Supreme         Court     was         addressing        only

§ 2241(e)(1).”);            Al-Zahrani       v.    Rodriguez,       669    F.3d     315,    319

(D.C. Cir. 2012) (“[T]he Supreme Court’s decision in Boumediene

[struck]       the    bar    to     federal       court    jurisdiction       over    habeas

claims, but . . . the reasoning of the Supreme Court applied

only to the stripping of habeas jurisdiction.”).




     5
       Ameur also says that the Supreme Court in Boumediene
expressly “rejected the argument that [§§] 2241(e)(1) and (e)(2)
could be read apart or treated separately.”         (Appellant’s
Opening Br. 16.) Ameur misreads Boumediene. As the Government
notes, Boumediene suggested that the two subsections of
§ 2241(e) had to be read together for purposes of an effective-
date provision.    See 553 U.S. at 737.      The Court did not
anywhere intimate that the provisions were to be read together
in any other instance or for any other purpose. As the district
court explained, the Court’s discussion of the effective-date
provision does not apply here because this case does not relate
to the effective-date provision. See Ameur, 950 F. Supp. 2d at
913.


                                              12
     Ameur’s broadest-possible-reading approach is inconsistent

with the analysis that we undertake in applying Supreme Court

opinions.     “[G]eneral expressions, in every opinion, are to be

taken in connection with the case in which those expressions are

used.”     Ark. Game & Fish Comm’n v. United States, 133 S. Ct.

511, 520 (2012) (quotation marks omitted); see also Armour & Co.

v. Wantock, 323 U.S. 126, 133 (1944) (“[W]ords of our opinions

are to be read in the light of the facts of the case under

discussion. To keep opinions within reasonable bounds precludes

writing into them every limitation or variation which might be

suggested by the circumstances of cases not before the Court.”).

Boumediene arose solely in the habeas corpus context, not in a

case involving a basic claim for damages –- that is, a case like

the one before us.       Boumediene relied on law exclusive to habeas

corpus and therefore should be applied only to the habeas-corpus

context in which it arose.

     In sum, the Supreme Court in Boumediene did not address,

let alone invalidate, § 2241(e)(2).          “[T]o the extent that the

Supreme Court in Boumediene . . . permitted further judicial

examination   of   the   detention   of   enemy   combatants,   it   did   so

using the limited tool of the constitutionally guaranteed writ

of habeas corpus -- not an implied and open-ended civil damages

action.”    Lebron v. Rumsfeld, 670 F.3d 540, 555 (4th Cir. 2012).



                                     13
                                      IV.

      In   the     alternative,       Ameur    argues       that    Boumediene

invalidated      § 2241(e)(2)    by    implication      in    striking      down

§ 2241(e)(1).      He contends that §§ 2241(e)(1) and (e)(2) are

non-severable, even though § 2241(e)(2) is a separate provision.

In other words, Ameur posits that the separate subsections found

in Section 7 of the MCA –- §§ 2241(e)(1) and (e)(2) -- must rise

and fall together.

      Boumediene did not address severability; it had no reason

to.    Nonetheless,     Ameur    maintains    that   “the    absence   of   any

severability analysis in Boumediene supports the conclusion that

the Court did not believe that the two subsections of § 2241(e)

were severable.”        (Appellant’s Opening Br. 18.)              He cites no

authority –- and we have found none -- supporting that kind of

adverse    inference.       In    fact,     “[c]ourts    routinely     reserve

judgment on severability, especially when, as in Boumediene, no

party briefed the issue or raised it at oral argument.”                Basardh

v. Gates, 545 F.3d 1068, 1072 (D.C. Cir. 2008).                     As Justice

Thomas has explained, even the Supreme Court “often disposes of

as-applied challenges to a statute . . . without saying anything

at all about severability.”           United States v. Booker, 543 U.S.

220, 322 (2005) (Thomas, J., dissenting).               “Such decisions (in

which the Court is silent as to applications not before it)

might be viewed as having conducted an implicit severability

                                      14
analysis.          A better view is that the parties in those cases

could have raised the issue of severability, but did not bother,

because (as is often the case) there was no arguable reason to

defeat       the    presumption       of     severability.”          Id.     (citation

omitted).

       And indeed, Ameur’s argument faces a high hurdle in view of

the    presumption        of   severability.            “Generally   speaking,      when

confronting a constitutional flaw in a statute, we try to limit

the solution to the problem.”                 Ayotte v. Planned Parenthood of

N. New England, 546 U.S. 320, 328 (2006); accord Pittston Co. v.

United States, 368 F.3d 385, 400 (4th Cir. 2004) (recognizing

the    “background        presumption       that    when    an   application     of       a

statute is determined to be unconstitutional, courts seek to

preserve as much of the statute as is still consistent with

legislative        intent”).        “Because      the    unconstitutionality        of    a

part    of    an    Act   does      not    necessarily      defeat   or    affect    the

validity of its remaining provisions, the ‘normal rule’ is that

partial . . . invalidation is the required course.”                        Free Enter.

Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161

(2010) (quotation marks, alteration, and citation omitted).

       Applying the presumption of severability, we will find one

statutory      provision       to    be    severable      from   another    unless       we

encounter one of three limited circumstances.                        First, we must

strike any provisions that are not themselves constitutionally

                                             15
valid.    See Booker, 543 U.S. at 258.                   Second, we must invalidate

a provision if it is incapable of “functioning independently.”

Id.     And third, we cannot uphold a provision if its separate

existence would be inconsistent with “Congress’ basic objectives

in enacting the statute.”             Id. at 259.

      Ameur       suggests        that       all        three    of        these      limited

circumstances exist here.                We find that none of the arguments

that Ameur proffers has merit.

                           A. Constitutional Validity

      Ameur   raises       four    distinct        challenges         to    § 2241(e)(2)’s

constitutionality.               First,      he     suggests       that       the     statute

unconstitutionally deprives him of access to courts.                               Second, he

maintains that § 2241(e)(2) unconstitutionally directs the rules

of decision in a case.                Third, he argues that § 2241(e)(2)’s

focus on alien detainees violates equal protection principles.

And     fourth,     he      says      that        the    section       amounts        to   an

unconstitutional          bill   of   attainder.           All   of        these    arguments

fail.

                                             1.

      Ameur       first     argues        that      Congress       deprived          him   in

§ 2241(e)(2)       of     any    forum    for      his     purported        constitutional

violations, violating both separation-of-powers principles and

due process.         To be sure, the Supreme Court has noted that

“serious constitutional questions” may arise if a person is left

                                             16
without    a    forum     for     adjudicating           his    constitutional       claims.

See, e.g., Calcano-Martinez v. INS, 533 U.S. 348, 351 (2001).

     To resolve this case, however, we need not decide whether

Congress can entirely foreclose constitutional claims, as Ameur

asks only for monetary damages.                       “[T]he Constitution does not

require    the      availability      of       such      a     remedy,   even      where   the

plaintiff’s         claim        is   based         on       alleged      violations        of

constitutional rights.”               Hamad, 732 F.3d at 1003; accord Al-

Zahrani, 669 F.3d at 319–20; Davis v. District of Columbia, 158

F.3d 1342, 1346 (D.C. Cir. 1998) (“[T]he Constitution does not

mandate a damages remedy for all injuries suffered as a result

of a constitutional violation.”).                     In other words, money damages

are “not an automatic entitlement” anytime that constitutional

rights have been violated.                Wilkie v. Robbins, 551 U.S. 537, 550

(2007); accord Zehner v. Trigg, 133 F.3d 459, 462 (7th Cir.

1997)   (“[T]he       Constitution         does       not      demand    an   individually

effective remedy for every constitutional violation.”).

     Indeed, the Supreme Court has refused to imply a monetary

remedy for constitutional violations in many cases.                             See Minneci

v. Pollard, 132 S. Ct. 617, 622 (2012) (collecting cases and

noting that “the Court has had to decide in several different

instances      whether      to    imply    a   Bivens        action[,]    [a]nd      in    each

instance       it   has     decided       against      the      existence     of    such    an

action”); see also, e.g., Lebron, 670 F.3d at 555-56 (refusing

                                               17
to recognize implied damages remedy for claimed constitutional

violations at Guantanamo).          For instance, the Supreme Court has

refused to recognize Bivens claims where Congress created an

alternative remedial scheme to resolve those claims, see, e.g.,

Schweiker v. Chilicky, 487 U.S. 412, 424-28 (1988), or where

“special    factors”    --   such    as    concerns   over   interfering   in

military affairs -- counsel against recognizing a new form of

liability, see, e.g., United States v. Stanley, 483 U.S. 669,

681 (1987).         Given Congress’ clear intent to divert detainee

treatment claims from federal court and into military tribunals,

and given the obvious national security concerns such claims

implicate, we have already concluded that constitutional claims

brought by Guantanamo detainees are not cognizable under Bivens.

See Lebron, 670 F.3d at 555-56 (“Congress rather than the courts

should     decide     whether   a    constitutional     claim    should    be

recognized in these circumstances.”). 6          As courts may decline to

recognize an implied cause of action for money damages in these

     6
        At oral argument, counsel for Ameur noted that the
complaint also sought “such further relief as the Court may deem
just and proper.”    (J.A. 67.)   She suggested that this vague
boilerplate phrase might provide a basis to find that Ameur
sought more than monetary damages.          Nonetheless, counsel
conceded that the crux of the complaint was monetary relief and
was unable to define any additional relief that might be
available.   We agree with the Government, then, that this suit
is a suit for monetary damages.       Moreover, Ameur failed to
present this argument in the district court or in his briefs in
this Court, so “we hold that it was waived.” W. Va. CWP Fund v.
Stacy, 671 F.3d 378, 389 (4th Cir. 2011).


                                      18
circumstances,       then    surely          Congress      may     explicitly    deprive

courts of jurisdiction to entertain those very same cases.

       “[W]hen Congress can validly extinguish a right to one or

more     judicial    remedies,          it    can     also       take    away   judicial

jurisdiction over suits in which plaintiffs seek remedies that

Congress has permissibly precluded.”                       Richard H. Fallon, Jr.,

Jurisdiction-Stripping Reconsidered, 96 Va. L. Rev. 1043, 1104

(2010).     After all, “the right of access to federal courts is

not a free-floating right, but rather is subject to Congress’

Article    III    power     to    set    limits       on     federal     jurisdiction.”

Roller v. Gunn, 107 F.3d 227, 231 (4th Cir. 1997).

       Ameur suggests that we find a constitutional entitlement to

damages in these circumstances because former detainees may not

look to other remedies such as a writ of habeas corpus or an

injunction.       According to Ameur, money damages afford his only

conceivable means of remedying the constitutional violations he

suffered.        By depriving courts of jurisdiction to hear money

damages claims, Ameur argues, Congress has altogether prevented

him from vindicating his constitutional rights.

       But the Supreme Court has held that courts may be deprived

of jurisdiction to hear damages claims even in cases where money

damages    provide    the    plaintiff’s           only    means    of   recovery.    In

Stanley, for example, the Court declined to recognize a damages

remedy    even    though    the   plaintiff’s             only   possible   remedy   was

                                              19
money    damages,       as        “congressionally             uninvited       intrusion        into

military affairs by the judiciary is inappropriate.”                                    483 U.S.

at 683.     “It is irrelevant,” the Court explained, “whether the

laws    currently       on        the    books       afford         Stanley,    or     any     other

particular   serviceman,                an    ‘adequate’           federal     remedy    for     his

injuries.”        Id.         The       Court’s      readiness         to    withhold    a     money

damages   remedy        in    Stanley         --    even       where    it    was    “damages      or

nothing,” id. at 690 (Brennan, J., dissenting) -- demonstrates

that Congress may similarly withhold a damages remedy here.                                        We

may not assume that a constitutionally mandated remedy exists

for Ameur merely because he cannot locate a remedy elsewhere.

See also Bush v. Lucas, 462 U.S. 367, 388 (1983) (stating that

the    question    of        whether         to    imply       a    monetary    remedy       for    a

constitutional violation “obviously cannot be answered simply by

noting that existing remedies do not provide complete relief for

the plaintiff”).

       Section    2241(e)(2)             thus      does    not       violate    separation-of-

power   principles           or    due       process      by       denying    Ameur    access      to

courts.

                                                   2.

       Section      2241(e)(2)                    also     does         not         reflect        an

unconstitutional         attempt             on    Congress’         part     “to     direct     the

substantive outcome of litigation.”                                (Appellant’s Opening Br.

26.)    Ameur premises this argument on United States v. Klein, 80

                                                   20
U.S. (13 Wall.) 128, 146 (1871), in which the Supreme Court

warned that Congress could not “prescribe rules of decision . .

. in cases pending before [the Court].”                       We have narrowly read

Klein to hold only that “Congress violates the separation of

powers when it presumes to dictate how the Court should decide

an issue of fact (under threat of loss of jurisdiction) and

purports to bind the Court to decide a case in accordance with a

rule of law independently unconstitutional on other grounds.”

United States v. Brainer, 691 F.2d 691, 695 (4th Cir. 1982)

(quotation marks omitted).                Section 2241(e)(2) does not speak to

any   issue       of   fact   or    bind        the   Court    to    an   independently

unconstitutional rule.             More obviously, Klein speaks to pending

cases,   and      this   case      was    not      pending    when   Congress    enacted

§ 2241(e)(2).          See Miller v. French, 530 U.S. 327, 349 (2000)

(characterizing Klein’s holding as limited to pending cases).

Thus, for many reasons, Klein does not apply here.

                                              3.

      Ameur       next   raises          an   equal     protection        challenge   to

§ 2241(e)(2), noting that it applies only to aliens.                             In the

equal-protection context, a “challenged classification need only

be rationally related to a legitimate state interest unless it

violates      a    fundamental       right       or   is     drawn   upon    a   suspect

classification such as race, religion, or gender.”                           Giarratano

v. Johnson, 521 F.3d 298, 303 (4th Cir. 2008).

                                              21
        Rational-basis        review      –-    not   strict    scrutiny,      as   Ameur

argues –- is the correct standard to apply here.                            See, e.g.,

Hamad,        732     F.3d      at   1005–06          (assessing        § 2241(e)(2)’s

constitutionality under rational-basis test).                        Aliens detained

as    enemy    combatants       enjoy     no    fundamental      right    to    a   money

damages remedy.          Nor is the alienage classification found in

§ 2241(e)(2) a suspect classification.                      When Congress classifies

based on alienage, courts give that choice leeway.                          See, e.g.,

Korab v. Fink, 748 F.3d 875, 882 (9th Cir. 2014) (“Although

aliens are protected by the Due Process and Equal Protection

Clauses, this protection does not prevent Congress from creating

legitimate distinctions . . . between citizens and aliens.”);

United States v. Huitron-Guizar, 678 F.3d 1164, 1170 (10th Cir.

2012) (“[C]ourts must defer to Congress as it lawfully exercises

its    constitutional        power   to    distinguish        between     citizens     and

non-citizens.”); cf. Mathews v. Diaz, 426 U.S. 67, 79-80 (1976)

(“In the exercise of its broad power over naturalization and

immigration,        Congress     regularly          makes    rules   that      would    be

unacceptable if applied to citizens.”).                      Thus, “[C]ongressional

classifications based on alienage are subject to rational basis

review.”       United States v. Ferreira, 275 F.3d 1020, 1025 (11th

Cir.     2001)      (emphasis    omitted);          accord    City   of     Chicago    v.

Shalala, 189 F.3d 598, 605 (7th Cir. 1999).



                                               22
       Section      2241(e)(2)              survives        rational-basis       review,    a

“deferential” standard that asks only whether Congress had a

“reasonable basis for adopting the classification.”                                Wilkins,

734    F.3d    at   348.             That     “reasonable       basis”    is    evident    for

§ 2241(e)(2),         as        the      statute       is     meant      to    limit   court

interference in our nation’s war on terror.                           See Hamad, 732 F.3d

at 1006 (explaining that provision was meant to “ensur[e] 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”); see also Mathews, 426 U.S. at 81

n.17 (describing how matters like “foreign relations, the war

power, and the maintenance of a republican form of government”

“are   so     exclusively            entrusted     to    the    political       branches   of

government     as     to       be    largely    immune       from    judicial    inquiry   or

interference” (quotation marks omitted)).

       In other contexts, courts have approved of Congress’ use of

citizenship as a proxy for situations likely to involve foreign

terrorism, which in turn trigger special concerns relating to

foreign affairs and immigration.                        See, e.g., United States v.

Lue,   134     F.3d    79,          87   (2d   Cir.     1998)       (“Congress    rationally

concluded      that        a        hostage     taking       within      our    jurisdiction

involving a noncitizen is sufficiently likely to involve matters

implicating foreign policy or immigration concerns as to warrant

a federal criminal proscription.”).                         The same principle applies

                                                 23
here:     Congress     could     rationally         conclude     that     litigation

involving non-citizen combatants poses a special risk of raising

foreign relations, immigration, or military-related matters that

courts are usually not equipped to address.                    Therefore, Congress

appropriately confined those issues to other proceedings more

closely tied to the political branches, while affording broader

relief     to   citizens     (who      do    not    present    foreign     relations

issues).

     In    addition,    the     decisions        that   Congress   made    here    are

consistent      with   the     long-standing        differential       treatment   of

enemy     aliens   during      times    of       war,   see,   e.g.,     Johnson    v.

Eisentrager, 339 U.S. 763, 769–77 (1950), and reflect a rational

Congressional attempt to deal with the threat of overburdened

courts in a piecemeal fashion, Helton v. Hunt, 330 F.3d 242, 246

(4th Cir. 2003) (explaining that legislatures are free to act

“one step at a time, addressing . . . the phase of the problem

which seems most acute to the legislative mind” (quotation marks

omitted)).

     Ameur has not attempted to address any of these genuine

interests.       Instead, he focuses on whether the classification

was narrowly tailored.          “[U]nder rational basis review, however,

the classification need not be the most narrowly tailored means

available to achieve the desired end.”                  Zehner, 133 F.3d 459 at



                                            24
463.       Accordingly,         Ameur’s        equal       protection        argument        lacks

merit.

                                               4.

        Lastly,    § 2241(e)(2)         is     not     a    bill      of    attainder.         “A

legislative act is an unconstitutional bill of attainder if it

singles     out    an       individual       or     narrow      class       of     persons     for

punishment without a judicial proceeding.”                             Lynn v. West, 134

F.3d 582, 594 n.11 (4th Cir. 1998); see also United States v.

Dorlouis,      107      F.3d    248,     257      (4th     Cir.      1997)       (“A    Bill   of

Attainder is a legislative determination of guilt which metes

out    punishment       to     named    individuals.”).               Courts       apply    three

general     tests       to     determine          whether       a    statutory         provision

qualifies as a prohibited bill of attainder:                           (1) a “historical”

test that looks to traditional forms of legislative punishment,

(2) a “functional” test that looks to the purposes served by the

bill,    and   (3)      a     “motivational”          test      that       looks       to   actual

legislative motives.              See, e.g., ACORN v. United States, 618

F.3d 125, 136 (2d Cir. 2010); accord Citizens for Equal Prot. v.

Bruning,    455      F.3d      859,    869     (8th      Cir.       2006).         “[O]nly     the

clearest          proof         could         suffice           to         establish           the

unconstitutionality of a statute [on the ground that it is a

bill of attainder].”             Communist Party of the U.S. v. Subversive

Activities Control Bd., 367 U.S. 1, 82–83 (1961).



                                               25
        Section 2241(e)(2) is not a bill of attainder under any of

these tests.

       Ameur     posits          that    precluding            persons       from      appearing     in

courts amounts to a historic form of punishment, but does not

point     to     any       case     involving             a    channeling         provision      that

precludes particular types of claims from being brought.                                         Such

jurisdictional limits are usually not viewed as a traditional

“punishment.”              See    Hamad,       732        F.3d     at     1004   (“Jurisdictional

limitations . . . do not fall within the historical meaning of

legislative punishment.”); Scheerer v. U.S. Att’y Gen., 513 F.3d

1244,     1253       n.9    (11th        Cir.        2008)         (declining       to    find      that

“jurisdictional rule” amounted to bill of attainder); Nagac v.

Derwinksi, 933 F.2d 990, 990-91 (Fed. Cir. 1991) (same).

       As to the functional test, a statute passes that standard

when     it     “reasonably             can     be        said      to     further       nonpunitive

legislative purposes.”                  Nixon v. Admin. of Gen. Servs., 433 U.S.

425, 475-76 (1977).                As we have already explained, § 2241(e)(2)

serves several legitimate ends:                               it channels military-related

matters       into     military         courts,           keeps      federal      courts      out    of

complicated foreign affairs questions, and limits the burdens

that    could     flow       from       an    unlimited            right    of    litigation        for

detainees.

       And     Section 2241(2)            passes          muster        under    the     motivational

test.         Ameur    points       to        nothing         in    the    legislative        history

                                                     26
indicating       a   punitive    purpose.         Though    he     contends      that    the

statute was passed with the intent to “reverse the holdings of

the Supreme Court” (Appellant’s Opening Br. 30), these types of

legislative overrides are unobjectionable so long as they stay

within constitutional bounds –- and such congressional changes

happen often.         See, e.g., Rivers v. Roadway Exp., Inc., 511 U.S.

298, 305 n.5 (1994) (“Congress frequently ‘responds’ to judicial

decisions    construing         statutes,     and    does    so    for    a    variety    of

reasons.”).          More to the point, statements of mere disagreement

with     previous       Supreme       Court      decisions        do     not    establish

“punitive” intent toward an individual or group.                              And, in any

event, these kinds of statements would be insufficient evidence

on their own.          See Selective Serv. Sys. v. Minn. Pub. Interest

Research Grp., 468 U.S. 841, 855 n.15 (1984) (explaining that

“isolated” statements from legislators “do not constitute the

unmistakable         evidence    of   punitive      intent”       required     (quotation

mark omitted)).

       Finally, we observe that § 2241(e)(2) does not meet the

“naming” or “specificity” requirement for bills of attainder.

“A     statute       with   open-ended        applicability,           i.e.,    one     that

attaches     not       to   specified     organizations            but    to    described

activities in which an organization may or may not engage, does

not single out a particular person or group for punishment.”

Hettinga v. United States, 677 F.3d 471, 477 (D.C. Cir. 2012)

                                            27
(quotation marks omitted).                  The statute at issue here attaches

to   past    and    future      conduct,          not      status    (or    some     proxy    for

status, like past conduct alone).                           After all, the statute is

triggered by unlawful combat against the United States.                                 See Ex

parte     Quirin,        317    U.S.        1,    30–31       (1942)        (explaining      the

difference between lawful and unlawful combatants).                                This open-

ended       classification         makes          us       even      more     certain        that

§ 2241(e)(2) is not a bill of attainder.

                                             * * *

        Section     2241(e)(2)         is        constitutional.              Therefore,      it

satisfies the first prong of the severance standard.

                               B. Independent Function

        Ameur     next    suggests      that          §    2241(e)(2)       cannot    function

independently       because      it    cross-references              other    statutes       that

may not be currently valid.                      But he never explains why a mere

cross-reference          renders      the    whole         section    ineffective.           And,

indeed, a reference-by-reference analysis reveals no reason to

doubt    §    2241(e)(2)’s         independent             vitality    as     a    stand-alone

statute.

        For instance, it does not matter that § 2241(e)(2) refers

in its first clause to the DTA.                           True, the two referenced DTA

provisions        are    no    longer        operative:           Congress     repealed       one

paragraph and the D.C. Circuit -- the only circuit entitled to

hear DTA claims -- nullified the other.                           See Bismullah, 551 F.3d

                                                 28
at     1075    (finding          that     Boumediene         invalidated          DTA     section

1005(e)(2) because Congress would not have intended DTA review

to    supplement         an   existent         habeas       remedy);        National      Defense

Authorization           Act   for    Fiscal      Year     2010,      Pub.    L.   111–84,      123

Stat. 2190, 2612 (repealing DTA section 1005(e)(3)).                                    But those

changes only have the effect of mooting the “except” language in

§    2241(e)(2)’s        introductory          clause,       not   §    2241(e)(2)        in    its

entirety.       Put differently, changes in the DTA have simplified

§ 2241(e)(2):           courts      no   longer      need    ask     whether      a   suit     that

falls within the ambit of § 2241(e)(2) might instead be brought

under the DTA.

       The “other action” language -- which must be read as the

converse      of   §     2241(e)(1)’s          habeas     language      --    also      does    not

defeat § 2241(e)(2)’s independence.                         “A subsection of a statute

is capable of functioning independently as a fully operative

law,    even       if    it      must     be    understood         by    reference        to    an

inoperative portion of the statute in order for its meaning to

be    clear.”           Hamad,      732    F.3d      at     1001-02     (quotation         marks,

citation,       and      alteration       omitted).            The      cross-reference          to

§ 2241(e)(1) serves merely a definitional purpose and does not

negate § 2241(e)(2) by association.                         See, e.g., Leavitt v. Jane

L., 518 U.S. 137, 142 (1996) (finding that one section’s cross-

reference to earlier, invalid section did not establish “such



                                                29
‘interdependence’ that [the later section] becomes ‘purposeless’

when [the earlier section] is unenforceable”).

        Finally, it does not matter that the Government now uses

the   designation      “unprivileged          enemy    belligerent”            for    persons

similarly situated to Ameur, rather than denominating them as

“enemy combatants.”             10 U.S.C. § 948a.           Ameur acknowledges his

designation       as   an      “enemy      combatant,”      and     §     2241(e)(2)         is

triggered by that designation.                  Section 2241(e)(2) functions as

an    independent      statute       and    meets     the   second        prong       of     the

severability test.

                            C. Congressional Objective

       Independence         aside,      Ameur      also     argues        that       allowing

§ 2241(e)(2) to stand alone would be inconsistent with Congress’

basic    objectives       in    enacting     the    MCA.         Again,    we       disagree.

“Congress’s overriding goal” in passing the MCA “was to limit

the judicial review available to detainees.”                             Bismullah, 551

F.3d at 1073; see also H.R. Rep. No. 109–664, pt. 1, at 27

(2007)    (congressional         committee        indicating      that     it       wished    to

“make    clear”    that     detainee       review    was    limited       to    two    narrow

contexts); cf. Lebron, 670 F.3d at 554-55 (detailing Congress’

efforts    to     constrain       judicial        review    in    areas        of    national

security concern).             “Congress designed the direct review regime

to limit judicial intervention and to consolidate review in one

forum.”     Basardh, 545 F.3d at 1071.                    Therefore, we doubt that

                                             30
Congress would prefer to open the floodgates to all sorts of

detainee-related litigation merely because Boumediene required

courts       to    allow     one    narrow      sub-class         of    cases     under     the

Suspension Clause, a provision that does not even apply here.

       Ameur’s      contention       that      legislative        history      supports     his

view    is    also    without       merit.          To    declare       a   provision      non-

severable, legislative history must make it “evident that the

Legislature would not have enacted those provisions which are

within its power, independently of that which is not.”                                 Pittston

Co., 368 F.3d at 400 (quotation marks omitted).                                  Here, Ameur

cites just one instance where Congress removed a severability

clause from the MCA and another when Congress refused to adopt

one.         As     the     Government         notes,      both     instances          involved

amendments in the nature of a substitution.                            See 152 Cong. Rec.

19,928,      19,948       (2006)   (passing         amendment     without       severability

clause); id. at 19,970 (rejecting amendment with severability

clause).          We cannot say that Congress was focused on a minor

provision         (that     is,    the    severability          clause)        while     making

wholesale         changes    to    the      broader       statutory         scheme.       More

importantly,          “congressional                inaction           lacks      persuasive

significance because several equally tenable inferences may be

drawn    from      such     inaction,       including       the    inference       that    the

existing legislation already incorporated the offered change.”

United    States      v.    Craft,       535   U.S.      274,   287     (2002)    (quotation

                                               31
marks and alteration omitted); see also Red Lion Broad. Co. v.

FCC, 395 U.S. 367, 382 n.11 (1969) (“[U]nsuccessful attempts at

legislation are not the best guides to legislative intent.”);

Tenneco Inc. v. Pub. Serv. Comm’n of W. Va., 489 F.2d 334, 338

(4th   Cir.    1973)      (refusing       to    draw         an       adverse   inference       from

Congress’ refusal to enact particular legislative provision).

       Lastly,     Ameur’s      argument        invites           us    to    draw   conclusions

from the absence of a severability clause.                                   But “the ultimate

determination of severability will rarely turn on the presence

or absence of such a clause.”                       United States v. Jackson, 390

U.S. 570, 585 n.27 (1968).                “Congress’ silence is just that --

silence       --    and       does    not       raise             a     presumption       against

severability.”           Alaska Airlines, Inc. v. Brock, 480 U.S. 678,

686 (1987).

       Section          2241(e)(2)        is        a        severable          statute         from

§ 2241(e)(1).            We   reject      all       of       Ameur’s         arguments    to    the

contrary.



                                               V.

       The parties raise several additional points, which we find

unnecessary        to    address     in   light         of    our       conclusion       that   the

district court lacked jurisdiction over the complaint under the

MCA.    See, e.g., Golden & Zimmerman, LLC v. Domenech, 599 F.3d

426, 433 n.2 (4th Cir. 2010) (“Because we have concluded that

                                               32
the district court was correct in finding that it did not have

subject matter jurisdiction . . ., we need not address [these]

alternative argument[s].”).            “Jurisdiction is power to declare

the   law,    and    when   it   ceases      to   exist,   the    only     function

remaining . . . is that of announcing the fact and dismissing

the cause.”     Steel Co., 523 U.S. at 94.



                                        VI.

      For    these   reasons,    the    decision     of    the   district    court

dismissing     Ameur’s      complaint     for     lack     of    subject    matter

jurisdiction is

                                                                         AFFIRMED.




                                        33
