United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2010 Decided June 18, 2010
No. 09-5328
OBAYDULLAH, DETAINEE, GUANTANAMO BAY AND SAMI AL
HAJJ, AS NEXT FRIEND OF OBAYDULLAH,
APPELLANTS
v.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES AND
ROBERT M. GATES, SECRETARY OF DEFENSE OF THE UNITED
STATES OF AMERICA,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01173-RJL)
Ranjana Natarajan argued the cause for appellant
Obaydullah. With her on the briefs were Kristine A. Huskey,
Anne Richardson, Dan Stormer, and Pardiss Kebriaei.
Robert M. Loeb, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief was
Sydney Foster, Attorney. August E. Flentje, Attorney, entered
an appearance.
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Before: GINSBURG and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: In July 2008 the Appellant,
known only as Obaydullah, petitioned the district court for a
writ of habeas corpus, challenging the lawfulness of his
detention at the Naval Station at Guantanamo Bay, Cuba. In
December the district court stayed Obaydullah’s petition
because military commission charges had been sworn against
him. Although no military commission proceeding had yet
begun — indeed, still has not begun — the district court twice
denied Obaydullah’s motions to vacate the stay of his habeas
petition. Obaydullah appeals from the second of those
denials. Because we agree with Obaydullah that this
prolonged delay in adjudicating his petition is inconsistent
with the Supreme Court’s teaching in Boumediene v. Bush
that a detainee at Guantanamo Bay is ―entitled to a prompt
habeas corpus hearing,‖ 128 S. Ct. 2229, 2275 (2008), we
reverse the order of the district court and remand this matter
for that court to proceed with Obaydullah’s habeas corpus
petition.
I. Background
The Military Commissions Act of 2009, Pub. L. No. 111-
84, tit. XVIII, 123 Stat. 2190, 2574–614, specifies the
―procedures governing the use of military commissions to try
alien unprivileged enemy belligerents for violations of the
laws of war and other offenses triable by military
commission.‖ 10 U.S.C. § 948b(a). The MCA, along with
the Rules for Military Commissions promulgated by the
Secretary of Defense to ―govern the procedures and
punishments in all trials by military commissions under [that
3
Act],‖ Rule 101(a), establish a two-step process for initiating
a trial before a military commission. First, any person subject
to the Uniform Code of Military Justice may swear a charge
against a defendant. 10 U.S.C. § 948q; Rule 307. Second, the
―convening authority‖ — either the Secretary of Defense or
his designee — decides whether the charge should be
dismissed or referred to a military commission for trial. 10
U.S.C. § 948h; Rules 401(b), 407, 601. There is no deadline
for making this determination.
Obaydullah has been detained at Guantanamo Bay since
October 2002. He petitioned the district court for a writ of
habeas corpus in July 2008, shortly after the Supreme Court
determined the writ is available to detainees held at
Guantanamo, see Boumediene, 128 S. Ct. at 2262. In
September Obaydullah was charged with conspiracy to
provide and providing material support for terrorism, both
crimes triable before a military commission. The
Government then filed a motion to dismiss without prejudice
Obaydullah’s habeas petition or, in the alternative, to hold the
petition in abeyance pending completion of the military
commission proceeding. Obaydullah opposed dismissal but
consented to the court holding his petition in abeyance. The
district court stayed the habeas petition in December 2008.
As of January 22, 2009 no convening authority had
decided whether to refer the charges against Obaydullah to a
military commission for trial. On that day the President
issued Executive Order No. 13,492, in which he directed the
Attorney General immediately to oversee a ―review of the
status of each individual currently detained at Guantanamo,‖
The version of Rule 401(b) in force at the time of the challenged
order set no specific deadline for this decision but required that it be
made ―in a prompt manner‖; the current version imposes no such
requirement.
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and to determine ―whether ... to prosecute the detained
individuals for any offenses they may have committed,
including whether it is feasible to prosecute such individuals
before a court established pursuant to Article III of the United
States Constitution.‖ §§ 4(a), (b), (c)(3), 74 Fed. Reg. 4897 at
4898–99. The President also directed the Secretary of
Defense ―to ensure that during the pendency of the Review
described in ... this order, no charges are ... referred to a
military commission.‖ § 7, 74 Fed. Reg. at 4899.
Because referrals to military commissions were
suspended pending the Attorney General’s review,
Obaydullah filed a motion to vacate the stay of his habeas
petition, which motion the Government opposed. The district
court denied the motion in April 2009 but required the
Government by July to report on the status of Obaydullah’s
possible trial before a military commission. In that report the
Government represented that some progress had been made in
reviewing Obaydullah’s detention pursuant to the Executive
Order, but it did not say when the convening authority would
decide whether to try Obaydullah before a military
commission.
Shortly before the Government submitted the status
report Obaydullah had filed a renewed motion to vacate the
stay of his habeas petition and the Government had opposed
the motion. After receiving the report the district court denied
the motion without making any findings or giving any reason.
It is this denial that Obaydullah now appeals.
In its brief on appeal the Government reports the review
of Obaydullah’s detention has been completed and the
Attorney General ―has determined that the petitioner’s case is
appropriate for prosecution and that a military commission is
the appropriate venue for such prosecution.‖ With this review
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now completed, whether a military commission proceeding
will be brought against Obaydullah again depends upon
whether the convening authority refers the charges against
him. The Government does not represent that such a referral
has been made, by a time certain will be made, or is in any
other way imminent.
II. Analysis
Obaydullah argues the district court, in continuing the
stay, erred as a matter of law and hence abused its discretion,
see Koon v. United States, 518 U.S. 81, 100 (1996) (―A
district court by definition abuses its discretion when it makes
an error of law‖), because the stay in the circumstances of this
case is inconsistent with the decision in Boumediene that a
detainee at Guantanamo Bay is ―entitled to a prompt habeas
corpus hearing.‖ 128 S. Ct. at 2275. Before reaching the
merits of Obaydullah’s argument, we consider the
Government’s contention that this court does not have
jurisdiction to review the order he is challenging.
A. Appellate Jurisdiction
Under 28 U.S.C. § 1291, this court has jurisdiction to
review an order of the district court only if that order
constitutes a ―final decision.‖ The collateral order doctrine of
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,
546–47 (1949), provides an order is final if it ―[1]
conclusively determine[s] the disputed question, [2] resolve[s]
an important issue completely separate from the merits of the
action, and [3] [will] be effectively unreviewable on appeal
from a final judgment.‖ Coopers & Lybrand v. Livesay, 437
U.S. 463, 468 (1978).
The Government contests only the first element, arguing
the order in this case does not ―conclusively determine the
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disputed question‖ because the district court is ―monitoring
the case‖ and at any time ―may lift the stay‖ should it decide
the military commission proceeding is ―unlikely to begin in a
timely fashion.‖ Even a collateral order that is technically
subject to modification, however, ―conclusively determine[s]
the disputed question [if] there is no basis to suppose that the
District Judge contemplated any reconsideration of his
decision.‖ Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 12–13 (1983); see also Lockyer v. Mirant
Corp., 398 F.3d 1098, 1103 (9th Cir. 2005) (holding a stay,
although ―theoretically‖ subject to modification, was a
reviewable collateral order because ―the district court did not
impose a time limit on the stay or note circumstances that
might result in its modification‖); In re Gen. Motors Corp.,
594 F.2d 1106, 1118 (7th Cir. 1979) (collateral order doctrine
―does not require that the trial court be without power to
reverse its ruling; it only requires that no further consideration
be likely‖).
The district court has twice summarily refused to lift the
stay of Obaydullah’s habeas petition. When the court did so
the second time the Government had reported making some
progress in its review of Obaydullah’s detention but had not
represented that there was a set time within which the
convening authority would decide whether to refer the
charges against Obaydullah to a military commission.
Because the district court’s maintenance of the stay in these
circumstances provides us ―no basis to suppose [it]
contemplated any reconsideration of [its] decision,‖ we have
jurisdiction under § 1291 to hear this appeal.
B. The Merits
The district court gave no reason for denying
Obaydullah’s motion to vacate the stay of his habeas petition,
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so we shall assume it did so for the reasons advanced at that
time by the Government. See Indianapolis Life Ins. Co. v.
Herman, 516 F.3d 5, 9 (1st Cir. 2008). Finding these reasons
inadequate, we are constrained to remand this matter to the
district court.
The Government’s main argument was that the district
court should abstain from hearing Obaydullah’s habeas
petition pursuant to Schlesinger v. Councilman, in which the
Supreme Court held a federal court should generally abstain
from intervening in an ongoing court-martial proceeding
against a member of the Armed Forces. 420 U.S. 738, 756–
58 (1975). As epitomized in Hamdan v. Rumsfeld, the Court
in Councilman based its decision upon ―two considerations of
comity that together favor abstention‖:
First, military discipline and, therefore, the efficient
operation of the Armed Forces are best served if the
military justice system acts without regular
interference from civilian courts. Second, federal
courts should respect the balance that Congress
struck between military preparedness and fairness to
individual service members when it created an
integrated system of military courts.
548 U.S. 557, 586 (2006) (internal citation and quotation
marks deleted).
The situation in Councilman was, of course, quite
different from the one here — the ongoing trial of a member
of the Armed Forces before a court-martial as opposed to the
possible future trial of an alien detainee before a military
commission. Nonetheless, the Government contends the
principles of Councilman apply here for two reasons:
Although military discipline is not implicated, the
enforcement of the laws of war is ―surely as exigent as
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maintaining discipline in the Nation’s own troops‖; and ―the
dictates of comity owed to the Congressionally mandated
military commissions‖ require abstention in order to avoid
duplicative proceedings and potentially inconsistent
judgments.
We need not decide in this case whether abstention under
Councilman is appropriate in order to avoid duplication of or
conflict with a proceeding before a military commission
because abstention is surely not appropriate where, as here,
there is no military commission, let alone an ongoing
proceeding; when the district court stayed Obaydullah’s
habeas petition and even now a trial before a military
commission is only a possibility and only at some unspecified
time in the future. As the Government concedes, ―[a]
detainee’s habeas case should not be stayed ... where military
commission proceedings are not expected to commence in an
appropriately timely fashion.‖ Therefore, we need hold only
that, whatever the point at which a proceeding before a
military commission can be considered pending for purposes
of abstention, it has not been reached here, where charges
against Obaydullah have not been referred and the
Government has provided us with no reason to believe such a
referral is imminent.
Our confidence that the Supreme Court’s concerns in
Councilman do not carry over to the present context is
increased by that Court’s similar holding with respect to the
abstention doctrine of Younger v. Harris, 401 U.S. 37 (1971).
The Government effectively concedes that no military
commission proceeding has or can be said to have begun: in its
brief it notes the district court’s stay was entered ―in anticipation of
military commission proceedings,‖ contrasting the circumstances
here with those in other cases where ―military commission
proceedings were active‖ when the stay was issued.
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In Younger the Court held a federal court should not entertain
an application to stay a criminal proceeding in state court,
except in extraordinary circumstances not relevant here. Id. at
43–45. In Steffel v. Thompson, however, the Court made clear
that Younger abstention is not called for when a state
prosecution is merely anticipated.
When no state criminal proceeding is pending at the
time the federal complaint is filed, federal
intervention does not result in duplicative legal
proceedings or disruption of the state criminal justice
system; nor can federal intervention, in that
circumstance, be interpreted as reflecting negatively
upon the state court’s ability to enforce constitutional
principles.
415 U.S. 452, 462 (1974). This reasoning applies equally
here. Adjudicating Obaydullah’s habeas petition neither
duplicates, nor disrupts, nor reflects negatively upon a
military commission that has not been, and may never be,
convened; nor, to recur to Councilman, will it upset ―the
balance that Congress struck between [national security] and
fairness to individual [detainees] when it created [military
commissions].‖
The Government argues further that even if abstention
pursuant to Councilman is not required because no military
commission proceeding is pending, the district court did not
abuse its discretion to control its own docket, see Clinton v.
Jones, 520 U.S. 681, 706 (1997), by staying the habeas case
in anticipation of such a proceeding. But to what end did it do
so? As we have explained, the considerations of comity
underlying Councilman are not implicated when no military
commission proceeding is pending. Although there may be
circumstances where a district court could, merely for reasons
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of ―economy of time and effort,‖ see Landis v. N. Am. Co.,
299 U.S. 248, 254 (1936), stay a detainee’s habeas petition in
anticipation of an imminent military commission proceeding,
to have done so after the passage of time involved here and
with no end in sight is insupportable in view of the Supreme
Court’s instruction that ―the costs of delay can no longer be
borne by those who are held in custody‖; they ―are entitled to
a prompt habeas corpus hearing.‖ Boumediene, 128 S. Ct. at
2275; see also Yong v. INS, 208 F.3d 1116, 1120 (9th Cir.
2000) (―habeas proceedings implicate special considerations
that place unique limits on a district court’s authority to stay a
case in the interest of judicial economy‖). Of course, the
charges may be referred to a military commission tomorrow
— which could raise anew the question of possible abstention
— but they may also be dropped tomorrow, or remain
pending for months or years to come.
III. Conclusion
Seeing no reason sufficient to justify denying Obaydullah
the ―prompt habeas corpus hearing‖ to which he is entitled,
we reverse the order of the district court denying his motion
to vacate the stay of his habeas petition. This matter is
remanded to the district court for further proceedings
consistent herewith.
So ordered.