 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 6, 2011             Decided February 21, 2012

                         No. 10-5393

     TALAL AL-ZAHRANI AND NASHWAN ALI ABDULLAH
                    AL-SALAMI,
                    APPELLANTS

                              v.

   ESTEBAN RODRIGUEZ, DIRECTOR, JOINT INTELLIGENCE
                   GROUP, ET AL.,
                    APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:09-cv-00028)



     Pardiss Kebriaei argued the cause for appellants. With her
on the briefs were Gitanjali S. Gutierrez, Shayana D. Kadidal,
and William Goodman.

    Robert M. Loeb, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were Tony
West, Assistant Attorney General, and Barbara L. Herwig,
Attorney.

    Before: SENTELLE, Chief Judge, WILLIAMS and RANDOLPH,
Senior Circuit Judges.
                                2

    Opinion for the Court filed by Chief Judge SENTELLE.

     SENTELLE, Chief Judge: Appellants Talal Al-Zahrani and
Ali Abdullah Ahmed Al-Salami, as representatives of the estates
of their deceased sons, brought this action against federal
officials and employees in district court seeking money damages
relating to the alleged mistreatment and eventual death of those
sons while they were detained at Guantanamo Bay Naval Base,
Cuba. The district court granted the motion of the United States
to be substituted as defendant and the motion of the United
States for dismissal of the claims. Following the district court’s
denial of appellants’ motion for reconsideration, they brought
the current appeal.1 Because we are satisfied that neither the
district court nor this court has jurisdiction over the subject
matter of this action due to the jurisdictional bar created by
§ 7(a) of the Military Commissions Act (MCA), codified at 28
U.S.C. § 2241(e), we affirm the judgment of dismissal, although
on different grounds than those relied upon by the district court.

                          Background

                        Factual History

     While the parties are in disagreement over the precise
events that led to the deaths of appellants’ decedents, much of
the general background is undisputed. Beginning in January of
2002, Yasser Al-Zahrani, Jr., a citizen of Saudi Arabia, and
Salah Ali Abdullah Ahmed Al-Salami, Jr., a citizen of Yemen,
were detained at the United States military base at Guantanamo
Bay, Cuba, as “enemy combatants.” In 2004, under the then-
current procedure of the United States military, Combatant
Status Review Tribunals reviewed the detention of the two and


       1
        While the appeal was pending, Nashwan Al-Salami, Al-
Salami’s brother, was substituted for his father.
                                3

confirmed the earlier determination that both detainees were
enemy combatants. On June 10 of 2006, both men, along with
a third detainee, died. Although the cause of death is the subject
of dispute in the current litigation, a Naval Criminal
Investigative Service report concluded that the deaths were the
result of suicide by hanging.

     On January 7, 2009, the plaintiffs, as fathers of the two
named decedents, filed an action against the United States,
twenty-four named, current, or former officials of the United
States, and one hundred unnamed “John Doe” officials of the
United States, seeking money damages relating to the deaths of
the two detainees and alleging that the defendants had subjected
the decedents to torture, arbitrary detention, and ultimately,
wrongful death. The defendants moved for the dismissal of
plaintiffs’ by-then amended complaint. The district court
dismissed the complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for failure to state a claim upon which
relief could be granted.

     For the reasons more fully set forth below, we affirm the
judgment of dismissal, although we further hold that the
dismissal is for a lack of jurisdiction rather than the failure to
state a claim for relief.

                            Analysis

     Federal courts are courts of limited subject-matter
jurisdiction. A federal court created by Congress pursuant to
Article III of the Constitution has the power to decide only those
cases over which Congress grants jurisdiction. Micei Int’l v.
Dep’t of Commerce, 613 F.3d 1147, 1151 (D.C. Cir. 2010). As
a federal appellate court, we have a “special obligation” to
satisfy ourselves of our own jurisdiction and that of the lower
court whose decision we are reviewing, even if the parties (and
                                 4

the district court) are willing to assume it. Bender v.
Willamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).
Congress has expressly deprived the federal courts of
jurisdiction over cases like the one before us.

     Specifically, plaintiffs filed a multi-count complaint as
representatives of the estates of their relatives against the United
States and “a host of government officials” alleging claims
under the Alien Tort Statute, 28 U.S.C. § 1350 (2006); the
Federal Torts Claims Act, 28 U.S.C. §§ 2671-2680; and the
Fifth and Eighth Amendments to the United States Constitution.
See Al-Zahrani v. Rumsfeld, 684 F. Supp. 2d 103, 105 (D.D.C.
2010). The United States moved to substitute itself as defendant
in the tort claims under the Westfall Act, 28 U.S.C. § 2679,
which provides for the exclusivity of remedy against the United
States under the Federal Torts Claims Act and thereby
establishes immunity from individual liability on the part “of
any employee of the Government while acting within the scope
of his office or employment . . . .” Section 2679(b)(1).

     All defendants moved for dismissal of all claims for the
failure of the complaint to state a claim within the jurisdiction
of the United States District Court, asserting both a lack of
jurisdiction and a failure of the pleadings to state a claim. The
District Court, while recognizing that the “plain language of [28
U.S.C. § 2241(e)(2)] precludes jurisdiction over claims by aliens
who ‘ha[ve] been determined’ to be enemy combatants by the
United States,” decided to avoid the constitutional implications
it saw in the jurisdictional question and instead reached the
merits of the complaint and entered a dismissal under Rule
12(b)(6). Al-Zahrani, 684 F. Supp. 2d at 110. Plaintiffs
appealed. For the reasons set forth below, while we agree with
the District Court that the case must be dismissed, we do so on
jurisdictional rather than merits-related grounds.
                                5

                                A.

     As we stated above, the federal courts are courts of limited
subject-matter jurisdiction. For a case or controversy to fall
within the authority of an inferior court created under Article III
of the Constitution, the Constitution must have supplied to the
courts the capacity to take the subject matter and an Act of
Congress must have supplied jurisdiction over it. See Micei Int’l
v. Dep’t of Commerce, 613 F.3d 1147, and authorities discussed
therein. Because a federal court without jurisdiction cannot
perform a law-declaring function in a controversy, “the Supreme
Court [has] held ‘that Article III jurisdiction is always an
antecedent question’ to be answered prior to any merits inquiry.”
Public Citizen v. U.S. District Court for the District of
Columbia, 486 F.3d 1342, 1346 (D.C. Cir. 2007) (quoting Steel
Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)).
Therefore, rather than proceed to weigh the adequacy of the
complaint to state a claim, as did the District Court, we first
examine the jurisdiction of the courts to entertain plaintiffs’
claims and find that jurisdiction wanting.

    In October of 2006, Congress enacted the Military
Commissions Act. Section 7 of the MCA included an
amendment to the habeas corpus statute. The amended statute
reads:

    (1) No court, justice, or judge shall have jurisdiction to hear
    or consider an application for a writ of habeas corpus filed
    by or on behalf of an alien detained by the United States
    who has been determined by the United States to have been
    properly detained as an enemy combatant or is awaiting
    such determination.

    (2) Except as provided in [section 1005(e)(2) and (e)(3) of
    the Detainee Treatment Act of 2005], no court, justice, or
                                   6

     judge shall have jurisdiction to hear or consider any other
     action against the United States or its agents relating to any
     aspect of the detention, transfer, treatment, trial, or
     conditions of confinement of an alien who is or was
     detained by the United States and has been determined by
     the United States to have been properly detained as an
     enemy combatant or is awaiting such determination.

28 U.S.C. § 2241(e)(1) and (2).

     The present litigation rather plainly constitutes an action
other than habeas corpus brought against the United States and
its agents relating to “aspect[s] of the detention . . . treatment . . .
[and] conditions of confinement of an alien” as described in the
MCA. Therefore, as the District Court noted, this action is
excluded from the jurisdiction of this court by the “plain
language” of an Act of Congress. This ends the litigation and
requires that we affirm the dismissal of the action.

     We have previously held in Boumediene v. Bush, 476 F.3d
981 (D.C. Cir. 2007), that the Act means what it says. It is true
that the Supreme Court, in its review of our decision in
Boumediene, found § 7 of the MCA to be constitutionally
defective. Boumediene v. Bush, 553 U.S. 723, 787-92 (2008).
However, the Boumediene appeal involved a decision applying
the first subsection of § 7 governing and barring the hearing of
applications for writs of habeas corpus filed by detained aliens.
The Supreme Court’s conclusion that the statute
unconstitutionally stripped the courts of jurisdiction to review
habeas corpus petitions relied on the Suspension Clause of the
Constitution: “The Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion or Invasion
the public Safety may require it.” U.S. Const. art. I, § 9, cl. 2.
Subsection 2 of the MCA, which governs and bars the present
litigation, has no effect on habeas jurisdiction. The Suspension
                                7

Clause is not relevant and does not affect the constitutionality of
the statute as applied in “treatment” cases. We have said as
much already. In Kiyemba v. Obama, 561 F.3d 509, 512 n.1
(D.C. Cir. 2009), we noted that the Supreme Court’s reference
to § 7 in Boumediene did not specify a particular subsection of
28 U.S.C. § 2241(e), “but its discussion of the Suspension
Clause clearly indicates it was referring only to that part of § 7
codified at § 2241(e)(1).” We reiterate our reasoning from
Kiyemba. In that case, we recognized that the Supreme Court’s
decision in Boumediene had stricken the bar to federal court
jurisdiction over habeas claims, but as we noted above, further
recognized that the reasoning of the Supreme Court applied only
to the stripping of habeas jurisdiction. “[O]rdinarily a court
should invalidate as little of an unconstitutional statute as
necessary to bring it into conformity with the Constitution.”
Kiyemba, 561 F.3d at 512. We therefore presume that the
Supreme Court used a scalpel and not a bludgeon in dissecting
§ 7 of the MCA, and we uphold the continuing applicability of
the bar to our jurisdiction over “treatment” cases.

                                B.

     Appellants argue that § 2241(e)(2)’s jurisdictional bar is
unconstitutional because it fails to provide a proper remedy for
violations of their constitutional rights. But the only remedy
they seek is money damages, and, as the government rightly
argues, such remedies are not constitutionally required. The
Supreme Court has made this eminently clear in its
jurisprudence finding certain of such claims barred by common
law or statutory immunities, and applying its “special factors”
analysis in preclusion of Bivens claims. See Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.
388, 392 (1971); see also Hui v. Castaneda, 130 S. Ct. 1845,
1852 (2010); Harlow v. Fitzgerald, 457 U.S. 800, 816-17
(1982); Chappell v. Wallace, 462 U.S. 296, 304 (1983). Further,
                                8

the Court applies that analysis to preclude Bivens claims even in
cases such as the present one, where damages are the sole
remedy by which the rights of plaintiffs and their decedents
might be vindicated. For example, in United States v. Stanley,
the Court refused to create a Bivens cause of action for a military
serviceman who had been secretly administered doses of LSD;
in doing so, the Court noted that it was “irrelevant to [the
analysis] whether the laws currently on the books afford Stanley
. . . an ‘adequate’ federal remedy for his injuries.” 483 U.S. 669,
683 (1987); see also id. at 690 (Brennan, J., concurring in part
and dissenting in part) (noting that the Court’s decision had
deprived plaintiffs like Stanley of their only effective remedy,
because “for these victims, ‘it is damages or nothing.’” (quoting
Bivens, 403 U.S. at 410 (Harlan, J., concurring))). As we have
recently said, “Not every violation of a right yields a remedy,
even when the right is constitutional.” Kiyemba v. Obama, 555
F.3d 1022, 1027 (D.C. Cir. 2009), reinstated as amended by
Kiyemba v. Obama, 605 F.3d 1046 (D.C. Cir. 2010). In light of
this, we see no basis on which to invalidate Congress’s decision
to foreclose such claims as plaintiffs’.

                           Conclusion

     For the reasons set forth above, we hold that 28 U.S.C.
§ 2241(e)(2) deprives this court of jurisdiction over appellants’
claims. We further hold that the Supreme Court did not declare
§ 2241(e)(2) unconstitutional in Boumediene and the provision
retains vitality to bar those claims. We therefore conclude that
the decision of the District Court dismissing the claims should
be affirmed, although for a lack of jurisdiction under Rule
12(b)(1) rather than for failure to state a claim under Rule
12(b)(6).

                                                  It is so ordered.
