Khadr v. United States

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 15, 2008 Decided June 20, 2008

No. 07-1405

OMAR KHADR,

PETITIONER

v.

UNITED STATES OF AMERICA AND UNITED STATES COURT OF

MILITARY COMMISSION REVIEW,

RESPONDENTS

On Respondents’ Motion to Dismiss the Petition for Review

for Lack of Jurisdiction

Karl M. Thompson argued the cause for petitioner. With

him on the brief were William C. Kuebler and Rebecca S.

Snyder, Counsel, Office of Military Commissions.

John F. De Pue, Attorney, U.S. Department of Justice,

argued the cause for respondents. With him on the briefs was

Kenneth L. Wainstein, Assistant Attorney General.

Before: SENTELLE, Chief Judge, ROGERS and BROWN,

Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

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SENTELLE, Chief Judge: Petitioner Omar Ahmed Khadr

was captured on a battlefield in 2002, charged by the United

States with war crimes, and referred to a military commission

for trial. With this petition, Khadr seeks review of a preliminary

procedural decision made in the course of the ongoing

proceedings before the military commission. We dismiss the

petition for lack of jurisdiction. The Military Commissions Act

of 2006 limits our jurisdiction to review of “final judgment[s]

rendered by a military commission” which have been “approved

by the convening authority” and for which “all other appeals

under [the Military Commissions Act] have been waived or

exhausted.” 10 U.S.C. § 950g(a)(1). The preliminary pretrial

decision that Khadr contests is not such a “final judgment.”

I. Background

Omar Ahmed Khadr is a Canadian citizen who was taken

into military custody in 2002 during the hostilities in

Afghanistan. He was transported to the United States detention

facility at Guantanamo Bay, Cuba, where he has since been

detained. In 2004, a three-member Combatant Status Review

Tribunal (“CSRT”) determined that he was properly classified

as an “enemy combatant” and as an individual who was “a

member of, or affiliated with al Qaeda.”

The United States charged Khadr under the Military

Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600,

with murder in violation of the law of war, attempted murder in

violation of the law of war, conspiracy, providing material

support for terrorism, and spying. The charge alleges that

Khadr murdered U.S. Army Sergeant First Class Christopher

Speer on or about July 27, 2002 by throwing a hand grenade at

U.S. forces; that Khadr attempted to murder U.S. or coalition

troops between June 1 and July 27, 2002 by converting land

mines into improvised explosive devices and planting them in

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the pathway of U.S. and coalition forces; that Khadr conspired

with, and provided material support to, al Qaeda between June 1

and July 27, 2002 when he received training, conducted

surveillance, and engaged in battle on al Qaeda’s behalf; and

that Khadr spied for al Qaeda by recording the travel patterns of

U.S. forces. Each count charged that Khadr was “a person

subject to trial by military commission as an alien unlawful

enemy combatant.”

On June 4, 2007, the military judge presiding over Khadr’s

military commission dismissed all charges without prejudice.

He found that the commission lacked jurisdiction over Khadr

because Khadr’s CSRT had not found that he was an “unlawful

enemy combatant.” The Military Commissions Act links the

commission’s jurisdiction to an individual’s status as an

“unlawful enemy combatant” by giving it “jurisdiction to try any

offense made punishable by this chapter or the law of war when

committed by an alien unlawful enemy combatant,” 10 U.S.C.

§ 948d(a), and denying it “jurisdiction over lawful enemy

combatants,” id. § 948d(b). Thus, the military judge found that

the CSRT’s classification of Khadr as an “enemy combatant”

was not enough to authorize the commission’s exercise of

jurisdiction over him.

The military judge further found that the commission lacked

authority to make the jurisdictional finding that Khadr was an

“unlawful” enemy combatant. Citing language in the Military

Commissions Act that makes a CSRT’s finding “that a person

is an unlawful enemy combatant . . . dispositive for purposes of

jurisdiction for trial by military commission under this chapter,”

10 U.S.C. § 948d(c), the military judge reasoned that only a

CSRT could make the “unlawful enemy combatant” finding.

Because there was no such finding in this case, the military

judge ordered the charges dismissed without prejudice.

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The United States appealed the military judge’s order to the

Court of Military Commission Review (“CMCR”). In a

decision issued on September 24, 2007, the CMCR affirmed the

decision in part and reversed it in part. The CMCR agreed that

the CSRT’s “enemy combatant” finding did not satisfy the

“unlawful enemy combatant” requirement of the Military

Commissions Act, but disagreed with the military judge’s

conclusion that a military commission was not authorized to

make the appropriate jurisdictional finding in the first instance.

The Military Commissions Act defines an “unlawful enemy

combatant” as either:

(i) a person who has engaged in hostilities or who has

purposefully and materially supported hostilities

against the United States or its co-belligerents who is

not a lawful enemy combatant (including a person who

is part of the Taliban, al Qaeda, or associated forces);

or

(ii) a person who, before, on, or after the date of the

enactment of the Military Commissions Act of 2006,

has been determined to be an unlawful enemy

combatant by a Combatant Status Review Tribunal or

another competent tribunal established under the

authority of the President or the Secretary of Defense.

10 U.S.C. § 948a(1)(A). The CMCR reasoned that the use of

the word “or” between subsections (i) and (ii) of the statutory

definition created alternative approaches for establishing

military commission jurisdiction, with the first subsection

allowing the commission to determine its jurisdiction and the

second subsection applying in those cases where a CSRT has

already made a dispositive “unlawful enemy combatant”

finding. The CMCR reversed “[t]he military judge’s ruling

[that] he lacked authority to hear evidence on, and ultimately

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decide, the matter of Mr. Khadr’s ‘unlawful enemy combatant

status’ under the provisions of the [Military Commissions Act]”

and returned the “record of trial . . . to the military judge, who

shall, consistent with this opinion, conduct all proceedings

necessary to determine the military commission’s jurisdiction

over Mr. Khadr.”

On October 9, 2007, Khadr petitioned this Court for review

of the CMCR’s decision.

II. Analysis

The government asserts that this petition should be

dismissed for lack of jurisdiction. “Because Article III courts

are courts of limited jurisdiction, we must examine our authority

to hear a case before we can determine the merits.” United

States v. British Am. Tobacco Australia Servs., Ltd., 437 F.3d

1235, 1239 (D.C. Cir. 2006) (quoting Wyo. Outdoor Council v.

U.S. Forest Serv., 165 F.3d 43, 47 (D.C. Cir. 1999)). As the

party claiming subject matter jurisdiction, Khadr has the burden

to demonstrate that it exists. Moms Against Mercury v. FDA,

483 F.3d 824, 828 (D.C. Cir. 2007). He contends that

jurisdiction is proper under the Military Commissions Act of

2006 and under the collateral order doctrine. We disagree.

A. Military Commissions Act

The Military Commissions Act provides that “the United

States Court of Appeals for the District of Columbia Circuit

shall have exclusive jurisdiction to determine the validity of a

final judgment rendered by a military commission (as approved

by the convening authority) under this chapter,” except that

“[t]he Court of Appeals may not review the final judgment until

all other appeals under this chapter have been waived or

exhausted.” 10 U.S.C. § 950g(a)(1). Khadr contends that this

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jurisdictional provision has been satisfied because the military

judge issued an order dismissing all charges and because all

appeals of that order have been exhausted. We do not agree.

The military judge’s order is not a “final judgment” as

required by 10 U.S.C. § 950g(a)(1)(A). It has long been well

established that the reversal of a lower court’s decision sets

aside that decision, leaves it “without any validity, force, or

effect,” and requires that it be treated thereafter as though it

never existed. Butler v. Eaton, 141 U.S. 240, 244 (1891); see

also Wheeler v. John Deere Co., 935 F.2d 1090, 1096 (10th Cir.

1991); Atlantic Coast Line R.R. Co. v. St. Joe Paper Co., 216

F.2d 832, 833 (5th Cir. 1954); Keller v. Hall, 111 F.2d 129, 131

(9th Cir. 1940); Corpus Juris Secundum, Federal Courts § 712

(2008). Once the military judge’s order in this case was

reversed by the CMCR, it lost all legal effect. An order that has

become a legal nullity could not possibly constitute a “final

judgment.”*

*

To the extent Khadr contends that the CMCR decision is a

“final judgment” under the Military Commissions Act, he fares no

better. Although Khadr asserts in his brief that the military judge’s

order is the appealable “final judgment,” Appellant’s Br. at 6, his

petition to this court sought “review of the decisions of the [CMCR],”

Petition for Review at 1, and the substance of his arguments on brief

challenges the CMCR remand order rather than the military judge’s

order in his favor. But “‘[a] remand order usually is not a final

decision,’” Lakes Pilots Ass’n, Inc. v. U.S. Coast Guard, 359 F.3d

624, 625 (D.C. Cir. 2004) (quoting NAACP v. U.S. Sugar Corp., 84

F.3d 1432, 1436 (D.C. Cir. 1996)). Because the resolution of the

jurisdictional issue does not leave “solely ‘ministerial’ proceedings,”

In re St. Charles Preservation Investors, Ltd., 916 F.2d 727, 729 (D.C.

Cir. 1990), to be conducted by the military judge on remand, the

CMCR’s remand order is not final for purposes of appellate

jurisdiction.

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Further, the “final judgment” must be “approved by the

convening authority” to satisfy the statute. See 10 U.S.C.

§ 950g(a)(1)(A). The military judge’s order in this case has not

been approved by the convening authority, nor could it be at this

juncture. The Military Commissions Act defers convening

authority review until after a military commission has found

guilt and announced a sentence. See 10 U.S.C. § 950b. In this

way, the statute clarifies that the “final judgment” contemplated

by the statute is very “final.” It is not a pretrial procedural

decision like the one at issue here.

Khadr advances three main arguments in an attempt to

evade the plain language requirements of 10 U.S.C.

§ 950g(a)(1)(A). None has merit. First, he argues that his

reading of the Military Commissions Act, which would allow

review of the military judge’s order irrespective of the finality

of the CMCR’s decision, is not unique. He points to another

statute, 38 U.S.C. § 7292(a), which does not explicitly premise

appellate review of trial-level decisions on the finality of an

intermediate appellate court’s decision. But that statute, which

applies to appeals of decisions from the Court of Appeals for

Veterans Claims and thus has no relevance here, does not

expressly require a “final” decision from the trial-level court.

See Williams v. Principi, 275 F.3d 1361, 1363 (Fed. Cir. 2002)

(quoting 38 U.S.C. § 7292(a)). The Military Commissions Act

does.

Khadr next seeks support from jurisdictional procedures in

the Uniform Code of Military Justice (UCMJ), but Congress

expressly stated in the Military Commissions Act that the UCMJ

does not apply to trials by military commission unless

specifically indicated. See 10 U.S.C. § 948b(c)–(d). Congress

did not specifically provide for the application of any

jurisdictional provisions from the UCMJ to appeals of military

commission decisions, but instead required a final judgment,

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approved by the convening authority, and appealed through the

administrative process. Thus, the UCMJ provides no

jurisdictional help to Khadr.

Finally, Khadr argues that the Government has shown,

through its conduct and regulations, that it agrees that an appeal

is authorized in this case. Khadr points to notice he was given

when he was served with the CMCR’s decision “that Rules for

Military Commission 908 and 1201 provide ‘a right to petition

the United States Court of Appeals for the District of Columbia

Circuit’ within 20 days of the date of this notification.” Rules

for Military Commission 908 and 1201, he argues, support the

notice’s statement because they speak in general terms of a right

to appeal “the decision” of the CMCR on “any appeal.” The

problem with Khadr’s argument is that “courts of appeals have

only [the] jurisdiction [that] Congress has chosen to confer upon

them” regardless of the actions of the parties, even when one of

those parties is the Executive Branch. Moms Against Mercury,

483 F.3d at 827 (quoting Cutler v. Hayes, 818 F.2d 879, 887

n.61 (D.C. Cir. 1987)). “Parties, of course, cannot confer

jurisdiction; only Congress can do so.” Weinberger v. Bentex

Pharms., Inc., 412 U.S. 645, 652 (1973); see also Kontrick v.

Ryan, 540 U.S. 443, 452 (2004). Thus, once Congress

determined the limits of this Court’s jurisdiction in the Military

Commissions Act, no rule, regulation, or notice given by the

Executive Branch could expand those limits. The statute

requires a final judgment by a military commission, approved by

the convening authority, for which all administrative review has

been exhausted, 10 U.S.C. § 950g(a)(1), and requires that

Executive Branch rules and regulations “not be contrary to or

inconsistent with” those statutory requirements, 10 U.S.C.

§ 949a(a). The regulations and notice given Khadr did not

change the statutory preconditions to our jurisdiction. Because

they have not yet been met in this case, the Military

Commissions Act does not give us jurisdiction.

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B. Collateral Order Doctrine

For the first time in its reply brief, the Government argued

that the collateral order doctrine does not apply to proceedings

under the Military Commissions Act. We generally refuse to

entertain arguments raised for the first time in a party’s reply

brief. Qwest Servs. Corp. v. FCC, 509 F.3d 531, 536 (D.C. Cir.

2007). While we will not consider the Government’s argument

here, Khadr’s argument fails even if the collateral order doctrine

were to apply to proceedings under the Act.

The collateral order doctrine allows interlocutory review of

a “small class” of decisions which “conclusively determine the

disputed question, resolve an important issue completely

separate from the merits of the action, and [are] effectively

unreviewable on appeal from a final judgment.” Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978). We hold that the

order at issue here cannot satisfy the third requirement because

it is reviewable on appeal from final judgment, and so will not

consider the first two requirements of the doctrine.

The Supreme Court has repeatedly “reiterated that

interlocutory or ‘piecemeal’ appeals are disfavored.” United

States v. MacDonald, 435 U.S. 850, 853 (1978) (citing cases);

see also United States v. Hollywood Motor Car Co., 458 U.S.

263, 265 (1982). The collateral order doctrine is intentionally

“narrow and selective in its membership,” Will v. Hallock, 546

U.S. 345, 350 (2006), and is especially so in criminal cases

where “‘encouragement of delay is fatal to the vindication of the

criminal law,’” MacDonald, 435 U.S. at 853–54 (quoting

Cobbledick v. United States, 309 U.S. 323, 325 (1940)). In

criminal cases, then, the collateral order doctrine must be

applied “‘with utmost strictness.’” United States v. Cisneros,

169 F.3d 763, 767 (D.C. Cir. 1999) (quoting Flanagan v. United

States, 465 U.S. 259, 265 (1984)).

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At issue here is a pretrial jurisdictional decision in a

criminal case. The Supreme Court has held that “the denial of

a claim of lack of jurisdiction is not an immediately appealable

collateral order” because “the right not to be subject to a binding

judgment may be effectively vindicated following final

judgment.” Van Cauwenberghe v. Baird, 486 U.S. 517, 527

(1988) (citing Catlin v. United States, 324 U.S. 229, 236

(1945)). The Court, therefore, has “declined to hold the

collateral order doctrine applicable where a district court has

denied a claim . . . that the suit against the defendant is not

properly before the particular court because it lacks

jurisdiction.” Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 500

(1989); see also United States v. Levy, 947 F.2d 1032, 1034 (2d

Cir. 1991); United States v. Layton, 645 F.2d 681, 683 (9th Cir.

1981); United States v. Sorren, 605 F.2d 1211, 1213–14 (1st Cir.

1979). Because jurisdictional decisions do not satisfy the

doctrine’s requirements, it necessarily follows that the decision

in this case, which does not yet decide jurisdiction, does not

warrant collateral order doctrine review. This procedural

decision, as well as any subsequent jurisdictional decision, will

be reviewable if necessary following a final judgment.

Khadr seeks special treatment for this procedural order

because it involves a military commission. He contends that

there is a public interest in ensuring the legality and legitimacy

of military commissions and that the interest counsels in favor

of reviewing procedural issues as they arise to make certain that

military commissions are operating fairly and in conformity

with the law. This public interest, Khadr argues, will be

irreparably harmed if the public is to later learn that Khadr was

tried by a tribunal that did not have jurisdiction over him. Thus,

he argues, he satisfies the requirements of the doctrine as

enunciated by the Supreme Court in Will: “it is not mere

avoidance of a trial, but avoidance of a trial that would imperil

a substantial public interest, that counts when asking whether an

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order is ‘effectively’ unreviewable if review is to be left until

later.” 546 U.S. at 353.

There is no substantial public interest at stake in this case

that distinguishes it from the multitude of criminal cases for

which post-judgment review of procedural and jurisdictional

decisions has been found effective. The Supreme Court in Will

clarified that the “substantial public interest” claimed by the

petitioner cannot be solely his “right not to stand trial.” 546

U.S. at 350–51. There must also be “some particular value of a

high order” that merits appealability prior to trial. Id. at 352.

Where a decision rejects a claim of absolute immunity, there is

a valuable interest in “honoring the separation of powers.” Id.;

see Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982). Where a

decision rejects a claim of qualified immunity, there is a

valuable interest in “preserving the efficiency of government

and the initiative of its officials.” Will, 546 U.S. at 352; see

Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Where a decision

rejects a State’s claim to Eleventh Amendment immunity, there

is a valuable interest in “respecting a State’s dignitary interests.”

Will, 546 U.S. at 352; see Puerto Rico Aqueduct & Sewer Auth.

v. Metcalf & Eddy, Inc., 506 U.S. 139, 144–45 (1993). And

where a criminal defendant has been denied his defense of

double jeopardy, there is a valuable interest in “mitigating the

government’s advantage over the individual.” Will, 546 U.S. at

352–53; see Abney v. United States, 431 U.S. 651, 660 (1977).

There is no comparable significant public interest implicated

here. Instead, Khadr has pointed solely to the interest that the

public has in ensuring that all criminal proceedings are just.

That interest does not warrant our interruption of this criminal

proceeding just because it is a military commission. This Court

will have opportunity to review this procedural decision post-

judgment if necessary and can then determine whether the

commission properly determined its jurisdiction and acted in

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conformity with the law. The collateral order doctrine does not

authorize us to make those determinations now.

III. Conclusion

For the reasons discussed above, we dismiss the petition for

lack of jurisdiction.