Ali Saleh Kahlah Al -Marri v. DONALD RUMSFELD , Secretary of Defense

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3674
A LI S ALEH K AHLAH AL -M ARRI ,
Petitioner-Appellant,
v.
D ONALD R UMSFELD , Secretary of Defense,
and M.A. M ARR , Commander, Naval Consolidated
Brig, Charleston, South Carolina,
Respondents-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03-1220—Michael M. Mihm, Judge.
____________
A RGUED F EBRUARY 18, 2004—D ECIDED M ARCH 8, 2004
____________
Before C OFFEY , E ASTERBROOK , and E VANS , Circuit
Judges.
E ASTERBROOK , Circuit Judge. A citizen of Qatar, Ali
Saleh Kahlah al-Marri entered the United States on
September 10, 2001. He was detained in December 2001 as
a material witness believed to have evidence about
the terrorist attacks of September 11. While in custody,
al-Marri made statements that led to his indictment for ly-
ing to the FBI; the grand jury also charged him with us-
ing bogus identification to obtain loans. Some of al-Marri’s

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2 No. 03-3674
activities took place in Illinois before his arrest and others
during his time in the Southern District of New York as
a material witness; he chose Illinois as a venue for the
criminal proceedings. Before trial could be held, however,
President Bush declared al-Marri to be an enemy combat-
ant affiliated with al Qaeda. Later that day (June 23, 2003),
the United States dismissed the indictment and moved
al-Marri from Illinois to the Naval Brig in Charleston,
South Carolina, for detention and questioning. That Brig
is where other persons designated as enemy combatants,
including Jose Padilla and Yaser Esam Hamdi, are being
held.
Still liking the Central District of Illinois, al-Marri filed
there a petition for a writ of habeas corpus. 28 U.S.C.
§2241. Section 2241(a) provides: “Writs of habeas corpus
may be granted by the Supreme Court, any justice thereof,
the district courts and any circuit judge within their
respective jurisdictions.” The district judge read “juris-
diction” to refer to the district in which the court sits,
rather than its ability to obtain personal jurisdiction over
the warden. Charleston is within the District of South
Carolina, and the judge held that it is the only court in
which al-Marri may contest his custody. 274 F. Supp. 2d
1003 (C.D. Ill. 2003). Although al-Marri named as respon-
dents the President and Secretary of Defense—anticipating
that the district judge might be unwilling to treat the
Commander of a military prison in South Carolina as
amenable to suit in Illinois—the court was unpersuaded,
ruling that the location for a proceeding under §2241 is the
district of the petitioner’s custody and not the larger
(potentially nationwide) territory in which a custodian
may be served with a summons.
Naming the President as a respondent was not only
unavailing but also improper, and we have removed his
name from the caption. Suits contesting actions of the
executive branch should be brought against the President’s

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No. 03-3674 3
subordinates. See Franklin v. Massachusetts, 505 U.S. 788,
803 (plurality opinion), 826 (Scalia, J., concurring) (1992).
What is more, the President could not be called al-Marri’s
custodian even if he were otherwise an appropriate litigant.
True, the President authorized al-Marri’s custody by
designating him as an enemy combatant, but there is a
difference between authorizing and exercising custody. A
judge authorizes custody by imposing a sentence of impris-
onment, but this does not make the judge an appropriate
respondent in a collateral attack. The legislature that
enacted the statute in question, the criminal investigator
who found damning evidence, the prosecutor, the grand
jurors who returned the indictment, the petit jurors who
rendered the verdict, the judge who imposed sentence, the
state or federal attorney general, the governor (or Presi-
dent)—these and more play roles in authorizing custody.
But for an inmate of a brig, jail, or prison the “custodian”
is the person in charge of that institution. See Hogan
v. Hanks, 97 F.3d 189 (7th Cir. 1996). In the federal sys-
tem, this means the warden (or Commander) rather than
the Director of the Bureau of Prisons, the Secretary of
the Navy, the Chairman of the Joint Chiefs of Staff,
the Attorney General, the Secretary of Defense, or the
President.
Commander Marr of the Naval Brig is al-Marri’s custo-
dian. Secretary Rumsfeld is Marr’s (remote) superior, and
no more an appropriate respondent on that account than
is the Attorney General when a convicted federal prisoner
or an alien detained pending removal seeks a writ of habe-
as corpus. See Robledo-Gonzales v. Ashcroft, 342 F.3d 667,
673 (7th Cir. 2003). al-Marri named the Secretary of
Defense in the belief that this would facilitate litigation in
the Central District of Illinois, but we do not see why it
would do so even if the Secretary were his custodian. Venue
in actions against federal officials is controlled by 28 U.S.C.
§1391(e):

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4 No. 03-3674
A civil action in which a defendant is an officer or
employee of the United States or any agency thereof
acting in his official capacity or under color of legal
authority, or an agency of the United States, or the
United States, may, except as otherwise provided
by law, be brought in any judicial district in which
(1) a defendant in the action resides, (2) a substan-
tial part of the events or omissions giving rise to
the claim occurred, or a substantial part of property
that is the subject of the action is situated, or (3)
the plaintiff resides if no real property is involved
in the action.
See also Stafford v. Briggs, 444 U.S. 527 (1980). Neither
Secretary Rumsfeld nor Commander Marr “resides” in the
Central District of Illinois; al-Marri does not reside there
either; few if any of the events that determine whether
(and how) al-Marri can be held under the law of war and
the authority granted by 18 U.S.C. §4001(a) and Ex parte
Quirin, 317 U.S. 1 (1942), occurred in the Central District
of Illinois. But if §2241(a) “otherwise provides,” and allows
litigation in the forum of the prisoner’s choice, then again
it is unnecessary to name the Secretary of Defense as a
party; Commander Marr, like any other federal official, may
be a defendant (in her official capacity) in any district
where Congress has authorized the litigation to take
place. Whether Secretary Rumsfeld (or Commander Marr)
has enough “contacts” with Illinois that litigation could
occur in a court of that state consistent with due process is
beside the point. An official-capacity suit such as this is
against the office, not the person, and every federal office
has “contacts” with the whole United States of America.
The district court wields the authority of the United States
as a nation rather than of any state. See Sheet Metal
Workers’ National Pension Fund v. Elite Erectors, Inc., 212
F.3d 1031 (7th Cir. 2000); Lisak v. Mercantile Bancorp, Inc.,
834 F.2d 668 (7th Cir. 1987). The right question is where

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No. 03-3674 5
§2241 allows litigation to be conducted. For persons im-
prisoned by the national government, the answer must be
either “the district where the petitioner is confined” or
“any of the 94 federal districts”; if the answer is favorable
to al-Marri and venue lies everywhere, it suffices to name
Commander Marr as a respondent. The answer, however,
is not favorable to al-Marri.
Long ago the Supreme Court held that the phrase “with-
in their respective jurisdictions” in §2241’s predecessor
limits proceedings to the federal district in which the
petitioner is detained. See, e.g., Wales v. Whitney, 114 U.S.
564, 574 (1885); Carbo v. United States, 364 U.S. 611, 617
(1961). This is an assumption underlying 28 U.S.C. §2255:
until that statute directed federal prisoners’ post-convic-
tion petitions to the sentencing courts, collateral attacks
had been litigated where the prisoners were located. See
United States v. Hayman, 342 U.S 205, 212-19 (1952). If
§2241(a) allowed prisoners held in other states to file in the
original sentencing districts, §2255 would have been
unnecessary. Likewise §2241(d), which provides that, when
a prisoner sentenced within one part of a state that has
multiple federal districts is being held outside that dis-
trict but still within that state, the petition may be filed
in the district where the sentence was imposed. If all 94
federal districts are available to every prisoner all the
time, what function does §2241(d) serve? Courts ought not
read federal statutes in ways that make whole sections
nugatory.
Appellate courts regularly dismiss actions under §2241
filed outside the judicial district that contains the place
of the prisoner’s detention. See, e.g., Vasquez v. Reno, 233
F.3d 688, 691 (1st Cir. 2000); Yi v. Maugans, 24 F.3d 500,
507 (3d Cir. 1994); In re Hanserd, 123 F.3d 922, 925 & n.2
(6th Cir. 1997); Jones v. Biddle, 131 F.2d 853, 854 (8th Cir.
1942); Blango v. Thornburgh, 942 F.2d 1487, 1491-92 (10th
Cir. 1991); Guerra v. Meese, 786 F.2d 414, 416 (D.C. Cir.

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6 No. 03-3674
1986). We have taken the same position, not only in
Robledo-Gonzales and Hogan but also in their predecessors.
See, e.g., United States v. Mittelsteadt, 790 F.2d 39 (7th Cir.
1986); Hanahan v. Luther, 760 F.2d 148, 151 (7th Cir.
1985). These decisions respect the language of §2241(a) and
the holdings of the Supreme Court. They make practical
sense as well. Enforcing §2241(a) as written avoids forum
shopping. Although al-Marri chafes at the prospect of
litigating in South Carolina, the district court there and its
appellate court are no less likely to respect his legal rights
than are the courts of this circuit; and if to al-Marri (or
his lawyers) it is irksome to litigate in Charleston, imagine
the difficulties that would ensue if al-Marri could choose
the district courts located in Fairbanks, Minot, San Juan,
or Agana. National venue would mean that one idiosyn-
cratic district or appellate court anywhere in the nation
could insist that the entire federal government dance to
its tune. Requiring prisoners to litigate where they are
confined (or, under §2255, had been sentenced) not only
distributes business among the district courts and circuits
but also allows important issues to percolate through
multiple circuits before the Supreme Court must review
a disputed question. Cf. United States v. Mendoza, 464
U.S. 154 (1984).
Within the last few months, however, two courts of
appeals have departed from this approach and held that, by
naming a cabinet officer as a respondent, a prisoner may
litigate in any of the 94 districts. See Padilla v. Rumsfeld,
352 F.3d 695, 704-10 (2d Cir. 2003), cert. granted, No. 03-
1027 (U.S. Feb. 20, 2004) (enemy combatant detained at
Charleston Brig); Ali v. Ashcroft, 346 F.3d 873, 887-88 (9th
Cir. 2003) (alien detained pending removal). Neither of
these opinions cites Wales or Carbo; neither devotes more
than a passing glance to the language of §2241(a); neither
acknowledges the contrary decisions of other circuits. What
both Padilla and Ali do say is that the cabinet officer is

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No. 03-3674 7
a proper respondent because he played a leading role in
the events that led to the detentions. The second circuit
wrote: “[a]lthough Commander Marr is the commander of
the Brig, the legal reality of control is vested in Secretary
Rumsfeld, since only he—and not Commander Marr—could
inform the President that further restraint of Padilla as
an enemy combatant is no longer necessary.” 352 F.3d at
707. And the ninth circuit stated: “Petitioners are not mere-
ly in the custody of the INS District Director but are subject
to a removal order that is based on the Attorney General’s
interpretation of the statute. Thus, the Attorney General,
whose unique role as the ultimate decision-maker is
particularly evident here, is the proper respondent.” 346
F.3d at 888. Both of these decisions conflate the person
responsible for authorizing custody with the person re-
sponsible for maintaining custody. Only the latter is a
proper respondent. If Padilla and Ali were correct then
the prosecutor, the trial judge, or the governor would be
named as respondents in post-conviction proceedings
under §2241 and §2254; yet no one believes that to be a
sound understanding of these statutes. Certainly it is
not the view long maintained by the federal judiciary,
and neither Padilla nor Ali unearthed any clues suggest-
ing that the historical understanding and practice are
wrong. These opinions therefore do not persuade us to
overrule Robledo-Gonzales and its predecessors.
Padilla, Ali, and al-Marri rely principally on Braden
v. 30th Judicial Circuit Court, 410 U.S. 484 (1973). Braden
was imprisoned in Alabama under a sentence imposed
by a court of that state. He also had been indicted in
Kentucky, which planned to defer his trial until Alabama
released him. After waiting for three years, Braden
filed a petition under §2241(a) in the Western District of
Kentucky, naming as respondent the court in which the
indictment was pending and claiming a right to termina-
tion of the Kentucky proceedings on the ground that the

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8 No. 03-3674
state had not afforded him a speedy trial. The Court held,
first, that Braden was “in custody” on the Kentucky indict-
ment and, second, that the state court was a permissible
respondent because it was the institution in charge of the
Kentucky proceedings. Braden reflects the understand-
ing that a prisoner can be “in custody” simultaneously in
multiple jurisdictions—for example, when serving a sen-
tence in State A and scheduled to be handed over to
State B to begin a consecutive term, or when a sentence
imposed by State C has been used to enhance a term being
served in State D. See, e.g., Garlotte v. Fordice, 515 U.S. 39
(1995); Maleng v. Cook, 490 U.S. 488 (1989); Rule 2(b) of
the Rules Governing Section 2254 Cases in the United
States District Courts. Prisoners under penal obligation to
two jurisdictions may seek collateral relief from both, for a
writ of habeas corpus issued against either custodian may
well abbreviate the petitioner’s stay in custody. One of
the “custodians” in these situations is entitled to future
rather than immediate physical control of the petitioner,
and the respondent then must be a person or institution
other than the warden. In order to reach this conclusion in
Braden, the Court had to overrule Ahrens v. Clark, 335 U.S.
188 (1948), which had held that only the immediate physi-
cal custodian is a proper respondent.
What Padilla and Ali hold, and what al-Marri maintains,
is that once Braden severed the link between physical
detention and “custody,” anyone with legal authority to
influence the physical custodian’s actions may be the
respondent, and thus the litigation may be conducted
against a Cabinet officer in any district. That’s a non
sequitur. Braden did not hold that litigation about the
Kentucky indictment could occur everywhere. It held
instead that multiple ongoing custodies imply multi-
ple custodians. Braden sued his Kentucky custodian in
Kentucky, just as §2241(a) provides. Similarly, when
custody takes a form other than physical detention—for

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No. 03-3674 9
example, parole or an obligation to report for military
service—it is necessary to identify as a “custodian” someone
who asserts the legal right to control that is being contested
in the litigation. See, e.g., Strait v. Laird, 406 U.S. 341
(1972); Schlanger v. Seamans, 401 U.S. 487 (1971). This
does not imply that, when there is only one “custody” taking
the form of physical detention, anyone other than the
warden or equivalent official is a proper respondent. Braden
itself recognized this, quoting with approval from Wales,
which Braden called “the classic statement” of the custody
principle. 410 U.S. at 495. The many cases cited a few
paragraphs back—Vasquez, Yi, and the others, including
those in our circuit—all post-date Braden and discuss
the limits of that decision. They hold that, when there is
only one custody and one physical custodian, that person
is the proper respondent, and the district in which the
prison is located the proper district, for proceedings un-
der §2241(a). We adhere to those decisions today.
One final matter requires brief attention. After the
United States filed a motion to dismiss al-Marri’s indict-
ment in the Central District of Illinois, his lawyer orally
opposed “any movement of Mr. Al-Marri until we have
an opportunity to file—it will be a habeas corpus action I
suspect. . . . [W]e would ask that the Court stay his removal
from the Peoria County jail for at least until some time
tomorrow so we would have an opportunity to file an
appropriate petition with the Court in regard to the trans-
fer to military custody.” The district judge denied this
motion on the ground that he has no authority to control
the place at which the executive branch holds a prisoner.
No appeal was taken. According to al-Marri, asking the
district court for an injunction against transfer was equiva-
lent to filing a petition under §2241; and if such a petition
had been filed while al-Marri was still in the Central
District of Illinois, that would have blocked transfer unless
the judge authorized the movement, see Fed. R. App. P.

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10 No. 03-3674
23(a), and even if transfer had been allowed the court
would have retained jurisdiction. See Ex parte Endo, 323
U.S. 283 (1944). But what actually happened, rather than
what could have happened, governs. Someone who files a
notice of appeal one day after the time expired loses, even
if the notice could have been filed on time. See Griggs v.
Provident Consumer Discount Co., 459 U.S. 56 (1982);
Browder v. Director, Illinois Department of Corrections, 434
U.S. 257 (1978). Likewise with a complaint filed one day
after the statute of limitations, or a summons attempted
to be served in hand one day after the potential defen-
dant left the jurisdiction. Cf. Burnham v. Superior Court
of California, 495 U.S. 604 (1990). What did happen is that,
after arriving at the Charleston Brig, al-Marri filed a
petition in Peoria, Illinois. He does not want the proceed-
ings transferred to Charleston under §2241(b). It is, he
says, Peoria or bust. The district court made the right
choice between these alternatives.
A FFIRMED
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-15-04

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