UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
MOHAMMED AL-ADAHI, et al., :
:
Petitioners, :
:
v. : Civil Action No. 05-280 (GK)
:
BARACK H. OBAMA, et al., :
:
Respondents. :
______________________________:
MEMORANDUM ORDER
Petitioner Mohammed Al-Adahi (“Al-Adahi” or “Petitioner”) is
a Yemeni citizen who has been detained at the United States Naval
Base at Guantanamo Bay Cuba since 2002. Al-Adahi v. Obama, Civ.
No. 05-280, 2009 WL 2584685, at *1 (Aug. 21, 2009)(“Mem. Op.”)
[Dkt. No. 459]. Al-Adahi filed a petition for a writ of habeas
corpus in 2005, which this Court granted on August 17, 2009. Id.
The Government has appealed that ruling. This matter is before the
Court on the Government’s Motion for Stay Pending Appellate Review
(“Gov Mot.”) [Dkt. No. 466]. Upon consideration of the Motion,
Opposition, Reply, and the entire record herein, and for the
reasons set forth below, the Government’s Motion is granted.
I. BACKGROUND
In the wake of the Court’s granting of Al-Adahi’s habeas
petition, the Government decided to challenge this decision, Gov
Mot. at 1, and Petitioner then filed a Cross-Appeal [Dkt. No. 473].
Expedited briefing of the appellate matter was completed on
December 7, 2009. No date for oral argument has yet been set, as of
this date. Seven days after noticing its appeal, the Government
filed the instant Motion. Petitioner filed his Opposition on
October 1, 2009 (“Pet.’s Opp’n”) [Dkt. No. 469], and the Government
filed its Reply on October 8, 2009 (“Gov Reply”) [Dkt. No. 479].
II. ANALYSIS
Courts may grant a motion for a stay pending appeal where the
moving party shows: (1) a likelihood of success on the merits of
the appeal; (2) “that it will suffer irreparable injury if the stay
is denied; (3) that issuance of the stay will not cause substantial
harm to other parties; and (4) that the public interest will be
served by issuance of the stay.” United States v. Philip Morris
Inc., 314 F.3d 612, 617 (D.C. Cir. 2003) (citing Washington Metro
Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C.
Cir. 1977)). Applying the test is not simply a matter of tallying
the factors that favor one party and comparing them to those
favoring the opposing party. Rather, the test is flexible, and
requires a weighing and balancing of the four factors. See Serono
Laboratories, Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir.
1998); Cuomo v. U.S. Nuclear Regulatory Comm’n, 772 F.2d 972, 974
(D.C. Cir. 1985).
The moving party is not required to show that it is assured of
success on appeal. Rather, it can satisfy the first factor by
raising in its appeal “questions going to the merits so serious,
substantial, difficult and doubtful, as to make them a fair ground
for litigation and thus for more deliberative investigation.”
Holiday Tours, 559 F.2d at 844; see also Comm. on the Judiciary of
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the United States House of Representatives v. Miers, 542 F.3d 909,
911-912 (D.C. Cir. 2009) (Tatel, J., concurring). The appeal
raises serious and difficult issues, including the proper
application of the well-established evidentiary standard in habeas
cases to the facts presented in this case. While the Court
believes that the Memorandum Opinion speaks for itself in terms of
how the case should be decided, it is true that it deals with
complicated issues that represent “fair ground for litigation and
thus for more deliberative investigation.” Holiday Tours, 559 F.2d
at 844. Therefore, the Government prevails on the first factor.
Second, the Court must assess whether denial of a stay would
cause the Government to suffer irreparable injury. Here the
Government argues that Al-Adahi’s release to Yemen would render the
United States “almost certainly . . . unable to regain custody of
him in the event that the Court of Appeals overturns this Court’s
grant of the writ.” Gov Mot. at 3. This potential release could
theoretically create a scenario where Petitioner is transferred to
Yemen, or another country, before the Court of Appeals has the
opportunity to decide the appeal. In such a scenario, if
Petitioner were released and if the Court of Appeals were to
reverse this Court’s decision, the Government is probably correct
that there is little chance that the United States would be able to
regain his custody. In that event, the United States would suffer
irreparable injury, and the safety of its citizens could be put at
risk. Petitioner does not address this point, despite the fact
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that denying the stay request presents a serious risk of harm to
the Government.
On the other hand, if the case is stayed there is no question
that Petitioner also suffers irreparable injury. It has been
nearly eight years since Al-Adahi was first detained at Guantanamo
Bay. He faces additional detention if the Motion is granted, as he
would remain at Guantanamo Bay for at least as long it takes for
the appellate litigation to run its course. Such a deprivation of
liberty constitutes serious and irreparable injury. Although the
Government has requested expedited review of the case, and the
briefing has been completed, no oral argument has been set and it
may well take the Court of Appeals many months to decide the
substantive legal issues presented, even after oral argument.
While Petitioner’s estimate of two to three years of further
litigation may overstate the delay,1 it will still be substantial.
See Pet.’s Opp’n at 4. Therefore, factors two and three sit in
equipoise, as both parties would potentially suffer irreparable
harm.
Finally, the Court must assess whether the public interest
would be served by the issuance of a stay. There is, as the
Government argues, significant benefit in having the Court of
Appeals clarify the evidentiary issues it raises. Gov Mot. at 5-6.
There can be little doubt that the Guantanamo Bay litigation
presents questions of “extraordinary public moment,” a
1
Petitioner could well be correct if the losing party
seeks certiorari from the Supreme Court and it is granted.
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consideration which militates in favor of a stay. Landis v. North
American Co., 299 U.S. 248, 256 (1936). Given the fact there are
numerous similarly situated petitioners before each judge in this
District, clarification of the legal landscape by the Court of
Appeals would be particularly useful. Thus, factor four supports
the granting of the Motion.
In carefully balancing each of these factors, the Court
concludes that a stay is appropriate. The appeal raises serious
and potentially far-reaching legal issues. There is no evidence
that the appeal was taken merely as a dilatory tactic designed to
lengthen Petitioner’s detention. Indeed, the Government has
appealed only a fraction of the cases in which it has not prevailed
(in fact, this may be the only case in which it has taken such an
appeal). The Court does not minimize in any way the significant
harm which Petitioner will suffer, but does conclude that the
balance of the equities favors granting the stay so that
significant legal issues can be resolved. Wherefore, it is hereby
ORDERED, that this Court’s August 17, 2009, Memorandum Opinion
and Order shall remain stayed until the conclusion of appellate
review.
/s/
December 9, 2009 Gladys Kessler
United States District Judge
Copies to: Attorneys of Record via ECF
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