Should I Sue Bush or Rumsfeld?
How lawsuits get their names.
On Tuesday, the Supreme Court will hear arguments in Hamdan v. Rumsfeld, the case of a former chauffeur to Osama Bin Laden who has been detained at Guantanamo Bay since 2002. Don't confuse Hamdan with Hamdi v. Rumsfeld—that one was decided back in 2004. Other high-profile detainee cases include Rasul v. Bush, Al Odah v. United States of America, and Rumsfeld v. Padilla. Why do some of these guys sue Rumsfeld, while others sue Bush or the United States?
In most cases, they're suing everyone in sight. Hamdan v. Rumsfeld is actually Hamdan v. Rumsfeld, et al. That et al. includes the commander of Guantanamo's Camp Echo, two officials charged with setting up the contested military commissions, and George W. Bush. Similarly, Rasul v. Bush, et al. lists Rumsfeld, a pair of Guantanamo commanders, and a pair of brigadier generals.
It's a good idea to cram your lawsuit with every plausible defendant. (You can get in trouble for including people on the list without a good enough reason, though.) In Rumsfeld v. Padilla, the plaintiff argued that he had been improperly detained but named only one respondent—the secretary of defense. The government countered by saying that Rumsfeld wasn't responsible for his detention, and that the petition should have named Melanie Marr, who ran the brig in South Carolina where Padilla was under lock and key. Padilla's lawyer had filed suit against Rumsfeld because she didn't know Padilla's exact whereabouts. (Why is Rumsfeld's name first in this case? The side that petitions the Supreme Court for a hearing always gets listed first. This case began as Padilla v. Rumsfeld, but the order got switched when the government side appealed to SCOTUS.)
You wouldn't have to worry about suing the right person if you could just sue the whole government. But as a general rule, you may only bring a lawsuit against individual officers who represent the federal government. This goes back to the common-law tradition that you couldn't sue the king, only his appointed agents. In America, you can name any representative of the government—from a park ranger, to a Cabinet secretary, to the president—but you can't sue the government as a whole.
What about Al Odah v. United States of America, et al.? For certain types of cases, the government waives, by congressional statute, its sovereign immunity from lawsuits. The Federal Administrative Procedure Act, for example, makes it possible to sue the "United States" in order to challenge a decision made by a government agency. In Al Odah, the detainees sued Bush, Rumsfeld, Richard Myers, and a few others—and then they threw in the U.S. on the basis of the Administrative Procedure Act.
Once you've named everyone in your lawsuit, it doesn't matter from a legal standpoint whose name goes first—and thus appears in the shorthand description of the case. The order of the names might be more important for PR: You'll get more press for suing George Bush et al. than for suing Col. Terry Carrico et al. For similar reasons, the White House might not want the president listed first on these cases. Hamdan v. Rumsfeld began as Hamdan v. Bush, but the government persuaded a lower court to have the president's name stripped from the lawsuit. (Bush has since been added back to the list, but this time at the bottom.)
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Explainer thanks Martin Redish and James Speta of Northwestern University, Michael Shollar, Benjamin Sharp of Perkins Coie, and Barry Sullivan of Jenner & Block. Thanks also to reader Stephen Kaplan for asking the question.