invoking the All 4 Writs Act, 28 U.S.C. § 1651 , and noting that if a case presents a “substantial jurisdictional 5 question . . . a district court may act to preserve its jurisdiction while it determines whether 6 it has jurisdiction”
How later courts described this case
- invoking the All 4 Writs Act, 28 U.S.C. § 1651 , and noting that if a case presents a “substantial jurisdictional 5 question . . . a district court may act to preserve its jurisdiction while it determines whether 6 it has jurisdiction”
- recognizing that federal courts have “presumptive jurisdiction … to inquire into the constitutionality of a jurisdiction-stripping statute”
- “Although the district court characterized the relief [appellant] seeks as a ‘temporary restraining order,’ that court’s order dismissing his motion ‘effectively foreclose[s]’ [appellant] ‘from pursuing further interlocutory relief in the form of a preliminary injunction,’ and is therefore ‘tantamount to denial of a preliminary injunction,’ appealable under 28 U.S.C. § 1292 (a)(1).” (quoting Levesque v. Maine, 587 F.2d 78, 80 (1st Cir. 1978))
- granting a temporary injunction to preserve jurisdiction in a Guantanamo Bay detainee case
Written by the judges who cited it.
The opinion
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.
*460 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, — U.S. -, 127 S.Ct. 3078 , 168 L.Ed.2d 755 (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 , 86 S.Ct. 1738 , 16 L.Ed.2d 802 (1966). I thus believe we should have simply continued the stay this court issued on December 31, 2007.