Belbacha v. Bush

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 6, 2007 Decided March 14, 2008

No. 07-5258

AHMED BELBACHA ,

APPELLANT

v.

GEORGE W. BUSH , PRESIDENT OF THE UNITED STATES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 05cv02349)

David H. Remes argued the cause for appellant. With him

on the briefs was Zachary Katznelson. James W. Beane, Jr.

entered an appearance.

Catherine Y. Hancock, Attorney, U.S. Department of

Justice, argued the cause for appellees. On the brief were Peter

D. Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S.

Attorney, and Douglas N. Letter, Robert M. Loeb, and Lowell V.

Sturgill, Jr., Attorneys, U.S. Department of Justice. Jonathan

F. Cohn, Deputy Assistant Attorney General, and R. Craig

Lawrence, Assistant U.S. Attorney, entered appearances.

Before: GINSBURG , RANDOLPH , and GRIFFITH , Circuit

Judges.

2

Opinion for the Court filed by Circuit Judge GINSBURG .

Dissenting opinion filed by Circuit Judge RANDOLPH .

GINSBURG , Circuit Judge: In 2005 Ahmed Belbacha, an

Algerian national, petitioned the district court for a writ of

habeas corpus in order to challenge his detention at Guantánamo

Bay, Cuba. In July 2007, with his petition still pending, he

sought interim relief barring his transfer to Algeria on the

ground that he is likely to be tortured by the government of

Algeria and by an extremist organization that has threatened him

in the past. The district court declined preliminarily to bar

Belbacha’s transfer on the ground it lacked the power so to do,

Belbacha v. Bush, No. 05-2349 (July 27, 2007), citing the

Military Commissions Act of 2006 (MCA), Pub. L. No. 109-

366, 120 Stat. 2600, and our decision in Boumediene v. Bush,

476 F.3d 981 (2007), cert. granted, 127 S. Ct. 3078 (June 29,

2007), in which we upheld the constitutionality of the MCA

provision removing the courts’ jurisdiction over detainees’

habeas petitions.

Belbacha noticed an appeal and simultaneously asked this

court to bar his transfer pending its resolution. A motions panel

denied Belbacha’s request for a stay but ordered the case heard

on an expedited basis. Belbacha, No. 07-5258 (Aug. 2, 2007).

After hearing oral argument, this panel temporarily enjoined his

transfer in order to preserve our jurisdiction over the appeal. We

now remand this matter to the district court for further proceed-

ings.

I. Appellate Jurisdiction

We have jurisdiction to entertain Belbacha’s interlocutory

appeal. Although the district court characterized the relief he

seeks as a “temporary restraining order,” that court’s order

3

dismissing his motion “effectively foreclose[s]” Belbacha “from

pursuing further interlocutory relief in the form of a preliminary

injunction,” and is therefore “tantamount to denial of a prelimi-

nary injunction,” appealable under 28 U.S.C. § 1292(a)(1). See

Levesque v. Maine, 587 F.2d 78, 80 (1st Cir. 1978). Moreover,

because Belbacha sought a stay of his transfer pending the

Supreme Court’s decision in Boumediene and it was clear the

Court would take more than 20 days to decide that case,

preserving the status quo required a preliminary injunction

rather than a temporary restraining order. See FED . R. CIV . P.

65(b)(2) (imposing time limitation upon a temporary restraining

order). We review de novo the legal question whether the

district court has the authority to enjoin Belbacha’s transfer.

II. Background

Belbacha filed a petition for a writ of habeas corpus in the

district court in 2005. In 2006 the Congress passed the Military

Commissions Act, § 7(a)(1) of which, 28 U.S.C. § 2241(e)(1),

provides the courts shall not have jurisdiction over any “appli-

cation 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,” and § 7(a)(2) of

which, 28 U.S.C. § 2241(e)(2), provides the courts shall not

have jurisdiction over “any other action ... relating to any aspect

of the detention, transfer, treatment, trial, or conditions of

confinement of” such an alien, “[e]xcept as provided in”

§ 1005(e) of the Detainee Treatment Act (DTA), Pub. L. No.

109-148, 119 Stat. 2680 (2005), 10 U.S.C. § 801 note.*

*

The DTA deprived the courts of jurisdiction over actions by

detainees at Guantánamo other than actions brought pursuant to the

DTA itself, see DTA § 1005(e)(1), 28 U.S.C. § 2241(e) (2005), but the

Supreme Court interpreted that provision as being inapplicable to

4

In Boumediene we held that § 7(a)(1) of the MCA does not

violate the Suspension Clause of the Constitution, U.S. CONST .

art. I, § 9, cl. 2, on the ground that the constitutional guarantee

of habeas corpus does not apply to a foreign national without

presence or property in the sovereign territory of the United

States. 476 F.3d 981. The Supreme Court initially denied

Boumediene’s petition for a writ of certiorari, 127 S. Ct. 1478

(Apr. 2, 2007), but upon rehearing granted the petition. 127 S.

Ct. 3078 (June 29, 2007).

III. Jurisdiction of the District Court

If a case presents a “substantial” jurisdictional question,

then under the All Writs Act, 28 U.S.C. § 1651, a district court

may act to preserve its jurisdiction while it determines whether

it has jurisdiction. United States v. United Mine Workers, 330

U.S. 258, 293 (1947); see also Bell v. Hood, 327 U.S. 678

(1946); cf. Omar v. Harvey, 479 F.3d 1, 11-14 (D.C. Cir. 2007)

(court may temporarily enjoin transfer in order to preserve

jurisdiction), cert. granted on a different question sub nom.,

Geren v. Omar, No. 07-394 (Dec. 7, 2007) (citing

Ntakirutimana v. Reno, 184 F.3d 419, 423 n.7 (5th Cir. 1999)

(stay of extradition pending appeal); Then v. Melendez, 92 F.3d

851, 853 n.1 (9th Cir. 1996) (same)). Accordingly, absent a bar

to its remedial powers, the court’s authority pursuant to the All

Writs Act to grant Belbacha’s motion for interim relief depends

upon whether Belbacha’s claims sound in habeas corpus and, if

so, whether our decision in Boumediene renders insubstantial his

argument that the district court has jurisdiction. Cf. Bell, 327

U.S. 678 (jurisdiction depends upon colorable claim); see also

Adams v. McCann, 317 U.S. 269, 273 (1942) (All Writs Act

grants power to issue “all auxiliary writs” as “may be necessary

petitions, such as Belbacha’s, that were pending when the DTA was

enacted. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2762-69 (2006).

5

for the exercise of a jurisdiction already existing”) (quoting

Whitney v. Dick, 202 U.S. 132, 136-37 (1906)). The MCA, of

course, leaves intact the presumptive jurisdiction of the federal

courts to inquire into the constitutionality of a jurisdiction-

stripping statute.

We conclude that Belbacha’s petition for a writ of habeas

corpus is colorable. Belbacha does not challenge only his

transfer to a country that might torture him; he contests also the

basis for his detention as an “enemy combatant.” Should the

Supreme Court hold in Boumediene that a detainee at

Guantánamo Bay may petition for a writ of habeas corpus to

challenge his detention, and should the district court conclude

that Belbacha’s detention is unlawful, then the Executive might

be without authority to transfer him to Algeria.* See Omar, 479

F.3d at 10 (holding writ of habeas corpus may be used to

challenge transfer of U.S. citizen held in Iraq to custody of Iraqi

court for trial); Benson v. McMahon, 127 U.S. 457, 462 (1888)

(extradition); INS v. St. Cyr, 533 U.S. 289 (2001) (deportation);

see also Wang v. Ashcroft, 320 F.3d 130, 141 (2d Cir. 2003)

(writ of habeas corpus used to challenge deportation in violation

of Convention Against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465

U.N.T.S. 85); but cf. Mironescu v. Costner, 480 F.3d 664 (4th

Cir. 2007) (Section 2242 of the Foreign Affairs Reform and

Restructuring Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681,

8 U.S.C. § 1231 note, renders Convention Against Torture

judicially cognizable only in the context of removal by immigra-

tion authorities). We need not and do not address the Govern-

ment’s argument that, irrespective of the Supreme Court’s

holding in Boumediene, § 7(a) of the MCA constitutionally bars

Belbacha’s underlying claims for relief; the district court has the

*

Belbacha apparently fled Algeria in 2000, deserting from the

Algerian army, to seek asylum in the United Kingdom.

6

authority to grant Belbacha preliminary relief because the

Suspension Clause colorably protects those claims and, as we

explain below, because § 7(a) does not displace its remedial

powers.

Our holding in Boumediene does not make Belbacha’s

argument for the jurisdiction of the district court less than

colorable. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.

83, 89 (1998), in which the Court made clear that foreclosure by

a prior decision of the Supreme Court renders a jurisdictional

question insubstantial but said nothing of foreclosure by a

decision of a court of appeals; 13B CHARLES ALAN WRIGHT ,

ARTHUR R. MILLER & EDWARD H. COOPER , FEDERAL PRACTICE

AND PROCEDURE § 3564 (2d ed. 2007) (same). Following the

grant of certiorari in Boumediene, this court stayed or recalled

its mandate in many cases raising the same issues as that case,

including some in which the Government proposed to transfer

the detainee, and held those cases in abeyance pending the

decision of the Supreme Court. E.g., Paracha v. Bush, No. 05-

5194; Kiyemba v. Bush, No. 05-5487; Al Ginco v. Bush, No.

06-5191; Zalita v. Bush, No. 07-5129; see also Abdah v. Bush,

No. 05-5224 (Aug. 9, 2007) (in appeal from grant of order

requiring advance notice of transfer, holding in abeyance

Government’s motion to dismiss habeas petitions in light of

grant of certiorari in Boumediene). The district court also has

held in abeyance the Government’s motions to dismiss detain-

ees’ petitions for habeas corpus, and stayed the underlying

cases. See, e.g., Hatim v. Bush, No. 05-cv-01429 (RMU) (Oct.

5, 2007); Taher v. Bush, No. 06-cv-01684 (GK) (Sept. 13,

2007); Mousovi v. Bush, No. 05-cv-01124 (RMC) (Sept. 7,

2007); Razakah v. Bush, No. 05-cv-02370 (EGS) (Aug. 17,

2007); Al-Mohammed v. Bush, No. 05-cv-00247 (HHK) (Aug.

7, 2007); Khalid v. Bush, No. 04-cv-01142 (RJL) (Aug. 5,

2007); Faraj v. Bush, No. 05-cv-01490 (PLF) (July 27, 2007);

Al Maqaleh v. Gates, No. 06-cv-01669 (JDB) (July 18, 2007);

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Ameziane v. Bush, No. 05-cv-00392 (ESH) (July 5, 2007);

Zadran v. Bush, No. 05-cv-02367 (RWR) (July 2, 2007).

Neither this court nor the district court could have held these

cases in abeyance unless we thought they presented a substantial

jurisdictional question. See New Mexico Navajo Ranchers Ass’n

v. ICC, 850 F.2d 729, 731-32 (D.C. Cir. 1988) (“Our decision to

[hold the case] in abeyance seems necessarily to have rested on

an assumption that this court secured jurisdiction”); see also

FED . R. CIV . P. 12(h)(3) (“If the court determines at any time

that it lacks subject-matter jurisdiction, the court must dismiss

the action”).

A decision of this court is binding upon a later panel and

upon the district court. We hold, nonetheless, that when the

Supreme Court grants certiorari to review this court’s determina-

tion that the district court lacks jurisdiction, a court can,

pursuant to the All Writs Act, 28 U.S.C. § 1651, and during the

pendency of the Supreme Court’s review, act to preserve the

status quo in other cases raising the same jurisdictional issue if

a party satisfies the criteria for issuing a preliminary injunction.

In resisting this conclusion, the Government points out that

we declined to enjoin a detainee’s transfer in Zalita v. Bush. No.

07-5129 (Apr. 25, 2007). But that case actually cuts against the

Government’s position. As in the instant case, Zalita noticed an

appeal from the district court’s denial of his motion for a

preliminary injunction and simultaneously sought to have this

court enjoin his transfer. In April 2007, before the Supreme

Court granted certiorari in Boumediene, we denied Zalita’s

motion for an injunction and dismissed the appeal on the

authority of Boumediene; once the Supreme Court reversed

course, however, so did we. We recalled the mandate, (Oct. 11,

2007), deferred consideration of Zalita’s petition for panel

rehearing and rehearing en banc, and held the case in abeyance

8

pending the Supreme Court’s decision, (Nov. 15, 2007); see also

Al Ginco, No. 06-5191 (Oct. 17, 2007) (same).

The Government argues also that we should affirm on the

basis of the order of a motions panel of this court denying

Belbacha a temporary stay pending this appeal, asserting that is

the law of the case and precludes the relief Belbacha sought in

the district court. See Belbacha, No. 07-5258 (Aug. 2, 2007)

(citing Maxwell v. Snow, 409 F.3d 354, 358 (D.C. Cir. 2005)).

An order denying preliminary relief, however, “does not

constitute the law of the case,” although it can be “persuasive.”

Berrigan v. Sigler, 499 F.2d 514, 518 (D.C. Cir. 1974). In any

event, the order also directed that this appeal be briefed and

argued on an expedited schedule. Although Boumediene, 476

F.3d 981, presumptively bars Belbacha the preliminary relief he

seeks, the motions panel obviously recognized that Belbacha

might be able to raise a substantial question of jurisdiction and

a colorable claim after full briefing and oral argument.

IV. Remedial Authority

The district court held, and the Government argues, that in

light of § 7(a)(2) of the MCA, the federal courts are without

power to entertain Belbacha’s motion seeking temporarily to

enjoin his transfer from Guantánamo to Algeria. Section 7(a)(2)

strips the courts of their “jurisdiction to hear or consider any

other action ... relating to any aspect of the ... transfer” of a

detainee. It does not displace their remedial authority, pursuant

to the All Writs Act, to issue an “auxiliary” writ “in aid” of a

“jurisdiction already existing,” see Adams, 317 U.S. at 273, here

the jurisdiction to determine whether § 7(a) is constitutional.

See United Mine Workers, 330 U.S. at 293; see also Clinton v.

Goldsmith, 526 U.S. 529, 534-35 (1999) (All Writs Act empow-

ers court to issue writs “‘in aid of’ its existing statutory jurisdic-

tion; the Act does not enlarge that jurisdiction”). Precedents of

9

the Supreme Court compel the conclusion that the federal

courts’ remedial powers are intact. Califano v. Yamasaki, 442

U.S. 682, 705 (1979) (“Absent the clearest command to the

contrary from Congress, federal courts retain their equitable

power to issue injunctions in suits over which they have jurisdic-

tion”); FTC v. Dean Foods Co., 384 U.S. 597, 608 (1966) (“In

the absence of explicit direction from Congress,” court retains

authority pursuant to All Writs Act to preserve status quo when

“necessary to protect its own jurisdiction”); Scripps-Howard

Radio v. FCC, 316 U.S. 4, 11 (1942) (unless Congress “clearly”

evinces a contrary intent, court is presumed to have power to

maintain status quo in order to preserve jurisdiction).* Other-

wise, Belbacha’s transfer would make it impossible for the

district court to entertain his claim to relief that the Constitution

might guarantee. Cf. Webster v. Doe, 486 U.S. 592, 603 (1988)

(declining to read statute to deprive court of jurisdiction over

“colorable constitutional claim”).

Our orders in Rahman v. Bush, No. 07-1204 (June 19,

2007), and Khalif v. Gates, No. 07-1215 (June 22, 2007), which

issued prior to the grant of certiorari in Boumediene, and in

which we declined to maintain the status quo in order to

*

For an example of a statute that clearly repealed both the

jurisdiction and the remedial powers of the courts, see the Emergency

Price Control Act of January 30, 1942, which deprived the courts of

“jurisdiction or power to consider the validity of any [covered]

regulation, order, or price schedule, or to stay, restrain, enjoin, or set

aside, in whole or in part, any provision of this Act authorizing the

issuance of such regulations or orders, or making effective any such

price schedule, or any provision of any such regulation, order, or price

schedule, or to restrain or enjoin the enforcement of any such

provision.” Pub. L. No. 77-421, 56 Stat. 23, § 204(d) (emphases

added). The Supreme Court sustained the statute, including the stay

provision, against a constitutional challenge in Yakus v. United States,

321 U.S. 414 (1944).

10

preserve our jurisdiction over actions brought pursuant to the

DTA, are not to the contrary. Rahman and Khalif relied upon

§ 1005(e)(2) of the DTA, subsection (D) of which extinguishes

this court’s jurisdiction under the DTA upon “the release of [an]

alien from the custody of the Department of Defense.” To read

that provision as leaving intact our authority to bar a transfer in

order to preserve our jurisdiction over an action pursuant to the

DTA, as Rahman and Khalif had argued, would have contra-

vened the intent of the Congress. Although our orders also cited

§ 7(a)(2) of the MCA, that provision serves only to make

§ 1005(e)(2) of the DTA the exclusive “action” for detainees; it

does not abridge our remedial powers. Hamlily v. Gates, No.

07-1127 (July 16, 2007), which issued after certiorari was

granted in Boumediene, cited only Rahman and Khalif, and is

inapposite for the same reasons.*

V. Preliminary Injunction

In deciding whether to issue a preliminary injunction, the

courts consider four factors: (1) whether the moving party has

a substantial likelihood of success on the merits; (2) whether the

moving party faces irreparable harm absent the preliminary

injunction; (3) whether the injunction would substantially injure

the opposing party; and (4) whether the injunction furthers the

public interest. Ellipso, Inc. v. Mann, 480 F.3d 1153, 1157

(D.C. Cir. 2007). “If the arguments for one factor are particu-

larly strong, an injunction may issue even if the arguments in

*

Notwithstanding the Government’s argument that the MCA

deprives all federal courts of their remedial authority to enjoin the

transfer of a detainee from Guantánamo Bay, our dissenting colleague

suggests that we could and should “issue a stay under the All Writs

Act” pending the resolution of Boumediene. The dissent, however,

nowhere explains how this court may do so without first considering

the Government’s argument.

11

other areas are rather weak.” CityFed Fin. Corp. v. Office of

Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).

Here the probability of Belbacha’s prevailing on the merits

of his habeas petition is far from clear but, in light of the

seriousness of the harm he claims to face, namely, torture at the

hands of a foreign state and of a terrorist organization, we

cannot as the Government urged at oral argument say

Belbacha’s motion for a preliminary injunction fails as a matter

of law. It falls to the district court in the first instance, therefore,

to balance the four factors in order to decide whether a prelimi-

nary injunction is “necessary or appropriate” in this case. 28

U.S.C. § 1651; see Serono Labs., Inc. v. Shalala, 158 F.3d 1313,

1317-18 (D.C. Cir. 1998). Accordingly this matter is remanded

to the district court for further proceedings.

So ordered.

RANDOLPH , Circuit Judge, dissenting: Students of federal

courts will be surprised to learn that district judges have

jurisdiction to issue preliminary injunctions in cases in which

they have no jurisdiction to issue permanent injunctions. That

is the majority’s position here.

I have no quarrel with the majority’s point that the district

court had jurisdiction to determine whether § 7(a) of the Military

Commissions Act, stripping that court of jurisdiction, was

unconstitutional. But I cannot see how this bears on the

question before us. The district court has already decided that

circuit precedent compelled it to uphold the statute, as indeed it

did. It therefore makes no sense to send the case back to the

district court so that it may decide whether to issue a temporary

injunction in aid of its jurisdiction to decide something it has

already (correctly) decided.

This should have been a very simple case. Instead it has

been turned into a tangle. All we had to do was issue a stay

under the All Writs Act, 28 U.S.C. § 1651, preventing

Belbacha’s transfer to Algeria pending the Supreme Court’s

decision in Boumediene v. Bush, 476 F.3d 981 (2007), cert.

granted, 127 S. Ct. 3078 (June 29, 2007). We would do so for

the traditional reasons – because there is a substantial chance the

Court’s decision will affect Belbacha’s case and because he

would suffer irreparable harm. See, e.g., Va. Petroleum Jobbers

Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir.

1958); W. India Fruit & S.S. Co. v. Seatrain Lines, Inc., 170

F.2d 775 (2d Cir. 1948), cited with approval in FTC v. Dean

Foods Co., 384 U.S. 597, 604 (1966). I thus believe we should

have simply continued the stay this court issued on December

31, 2007.