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Petitioners,

v.


____________________________________
)

SAEED MOHAMMED SALEH
)
HATIM, et al.,

)

)




)

)



)
)


GEORGE W. BUSH, et al.,
)
)


)




)
____________________________________)



















Respondents.





Civil Action No. 05-01429 (RMU)

Case 1:05-cv-01429-UNA Document 70 Filed 04/12/2007 Page 1 of 8

Cleared for public filing 4/12/07

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA





MOTION FOR STAY-AND-ABEY ORDER

Petitioners respectfully request that this Court, in the interest of justice, (1) stay

the dismissal of this habeas action for want of jurisdiction pending Petitioners’ exhaus-

tion of their remedies in the Court of Appeals under the Detainee Treatment Act of 2005,

Pub. L. No. 109-148, 119 Stat. 2680 (“DTA”), and (2) hold this action in abeyance pend-

ing Petitioners’ exhaustion of those remedies and the filing in the Supreme Court of a re-

newed petition for certiorari to review the Court of Appeals’ jurisdictional holding in

Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007) (“Boumediene I”), or the Supreme

Court’s resolution of the same jurisdictional issue as presented in a pending petition for

certiorari before judgment in Hamdan v. Rumsfeld, No. 06-1169, and an original habeas

petition in In re Ali, No. 06-1194. The government opposes this motion.

The Court of Appeals has not issued its mandate in Boumediene I. The Boumedi-

ene petitioners have asked the Court to stay the issuance of its mandate pending the com-

pletion of DTA proceedings and the filing of a renewed petition for certiorari to review

the Court’s jurisdictional ruling in Boumediene I. The Court has not yet acted on the mo-

Case 1:05-cv-01429-UNA Document 70 Filed 04/12/2007 Page 2 of 8

tion. This case is presently before the D.C. Circuit on an interlocutory appeal (No. 05-

5398) and the government has moved to dismiss in that case. Petitioners have not yet

filed oppositions to the government’s motions to dismiss, but when they do, they will ask

the D.C. Circuit to reject dismissal and allow these cases to be stayed and held in abey-

ance.

“District courts . . . ordinarily have authority to issue stays, see Landis v. North

American Co., 299 U.S. 248, 254 (1936), where such a stay would be a proper exercise of

discretion, see Clinton v. Jones, 520 U.S. 681, 706 (1997).” Rhines v. Weber, 544 U.S.

269, 276 (2005). In appropriate circumstances, a district court may stay a federal habeas

action pending the petitioner’s exhaustion of state-court remedies for unexhausted claims.

Id. at 277-78. The considerations that make a stay-and-abey appropriate in that setting

also support a stay-and-abey here.

On February 20, 2007, a divided panel of the Court of Appeals ruled that the Mili-

tary Commissions Act of 2006 (“MCA”), Pub. L. No. 109-366, 120 Stat. 2600, had

stripped the federal courts of jurisdiction over habeas actions, such as this, brought by

foreign nationals held at Guantánamo. Boumediene I, 476 F.3d at 988. Judge Robertson

anticipated the Court of Appeals’ jurisdictional ruling in Hamdan v. Rumsfeld, Civil Ac-

tion No. 04-1519 (JR) (D.D.C. Dec. 13, 2006).

On March 5, 2007, the Boumediene petitioners filed a certiorari petition in the

Supreme Court; on April 2, 2007, the Court denied the petition. Three Justices dissented

from the denial of the petition. See Boumediene v. Bush, Nos. 06-1195 & 06-1196, 2007

WL 957363 (U.S. Apr. 2, 2007) (“Boumediene II”), stating that the jurisdictional and

constitutional questions raised by the petitioners “deserve this Court’s immediate atten-



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Case 1:05-cv-01429-UNA Document 70 Filed 04/12/2007 Page 3 of 8

tion.” Id. at *1 (Breyer, J., joined by Souter & Ginsburg, JJ., dissenting). Two other Jus-

tices stated that, despite “the obvious importance of the issues raised in these cases,” it

was “appropriate to deny these petitions at this time” in order to require the petitioners to

exhaust their DTA remedies. Id. (statement of Stevens and Kennedy, JJ., respecting the

denial of certiorari) (emphasis added).

Five Justices have thus at least made clear that, upon the petitioners’ exhaustion

of their DTA remedies, the Supreme Court will give serious consideration to a renewed

certiorari petition seeking review of this Court’s decision in Boumediene I. A majority of

the Court, in other words, has left open the possibility that the Court of Appeals’ holding

in might be held erroneous and that it might therefore be appropriate to allow the habeas

actions of the petitioners and those similarly situated to proceed in the district courts at

some later date.

Indeed, two petitions are pending in the Supreme Court that bear directly on the

MCA jurisdictional holding of the Court of Appeals. First is a petition for certiorari be-

fore judgment in Hamdan v. Rumsfeld, No. 06-1169, seeking review of Judge Robert-

son’s ruling on the MCA jurisdictional issue. Hamdan filed his reply brief in support of

certiorari on April 10, 2007. Under the Court’s posted schedule, the Hamdan papers pre-

sumably will be distributed for consideration at the Court’s Conference on April 27,

2007.

Second is an original habeas petition in In re Ali, No. 06-1194, which directly

challenges the MCA jurisdictional holding of the Court of Appeals. The Supreme Court

considered the Ali petition sufficiently serious that it directed the government to respond

to the petition. The government’s response is due on April 16, 2007. Under the Court’s



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Case 1:05-cv-01429-UNA Document 70 Filed 04/12/2007 Page 4 of 8

posted schedule, the Hamdan papers presumably will be distributed for consideration at

the Court’s Conference on May 10, 2007.

Under these circumstances, it would be premature for this Court to dismiss Peti-

tioners’ cases for lack of jurisdiction. Rather, this Court should stay this action pending

(1) timely filing by Petitioners of DTA petitions and (2) resolution of timely, renewed

petitions for certiorari in the Supreme Court challenging the Court of Appeals’ jurisdic-

tional holding in Boumediene I, or resolution of the jurisdictional issue in Hamdan or Ali.

This course of action will work no prejudice on Respondents. It will, however,

save Petitioners the uncertainty accompanying attempts to “resurrect” dismissed habeas

claims following exhaustion of their DTA remedies. Petitioners are concerned, for ex-

ample, that if their habeas petitions are dismissed, Respondents will argue in later court

hearings that Petitioners may seek review only of the Court of Appeals’ DTA determina-

tions. The DTA, in turn, allows challenges only to specified aspects of final decisions of

the Combatant Status Review Tribunals (“CSRTs”). Under these circumstances, the

most economical and efficient way to proceed is for this Court to stay rather than dismiss

this action. The Court should do so purely as a precaution. See Boumediene, 2007 WL

957363, at *1 (statement of Stevens, J., joined by Kennedy, J., respecting denial of certio-

rari) (“Were the Government to take additional steps to prejudice the position of petition-

ers in seeking review in this Court, ‘courts of competent jurisdiction,’ including this

Court, ‘should act promptly to ensure that the office and purposes of the writ of habeas

corpus are not compromised.’”) (citation omitted).

It is immaterial that this Court held in Boumediene I that the federal courts no

longer retain jurisdiction over habeas actions such as this. The correctness of that juris-



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Case 1:05-cv-01429-UNA Document 70 Filed 04/12/2007 Page 5 of 8

dictional holding is still in dispute and jurisdiction remains a live issue that will be re-

solved with finality only if the Supreme Court decides the issue in Hamdan or Ali, or af-

ter Petitioners have exhausted their DTA remedies and the Supreme Court has disposed

of Petitioners’ renewed certiorari petitions challenging the Court of Appeals’ MCA juris-

dictional holding. It is fundamental, of course, that the courts have jurisdiction to deter-

mine their own jurisdiction. See Kircher v. Putnam Funds Trust, 126 S. Ct. 2145, 2155

(2006) (a court’s “adjudicatory power is simply its authority to determine its own juris-

diction to deal further with the case”); Ex parte Milligan, 71 U.S. 118, 131 (1866) (“The

writ issues as a matter of course; and on the return made to it the court decides whether

the party applying is denied the right of proceeding any further with it.”).

Staying this action to allow Petitioners to exhaust their DTA claims in the Court

of Appeals and then seek review of that Court’s Boumediene I jurisdictional holding is

also consistent with Supreme Court directives concerning the proper course of action by a

federal court when presented with unexhausted habeas petitions brought pursuant to 28

U.S.C. § 2254. As mentioned, where a habeas petitioner has failed to exhaust all avail-

able remedies in state court, a federal court retains discretion to keep jurisdiction over the

pending habeas petition, staying the action and allowing exhaustion of remedies in the

state courts rather than dismissing it. Rhines, 544 U.S. at 277. Indeed, the Supreme

Court has indicated that it would be an abuse of discretion to dismiss a petition if the “pe-

titioner had good cause for his failure to exhaust, his unexhausted claims are potentially

meritorious, and there is no indication that [the petitioner] engaged in intentionally dila-

tory litigation tactics.” Id.; accord Pace v. DiGuglielmo, 544 U.S. 408, 416-17 (2005);

see also Duncan v. Walker, 533 U.S. 167, 182 (2001) (Stevens, J., joined by Souter, J.,



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Case 1:05-cv-01429-UNA Document 70 Filed 04/12/2007 Page 6 of 8

concurring in part and concurring in the judgment) (stating that “in our post-AEDPA

world there is no reason why a district court should not retain jurisdiction over a merito-

rious [habeas] claim and stay further proceedings pending the complete exhaustion of

state remedies”).

The requested relief will aid Petitioners in receiving a speedy review of the con-

stitutional issues presented in their habeas petitions once their DTA claims are exhausted.

Their habeas petitions have been pending for nearly three years and have yet to progress

substantially. Because there is a reasonable possibility that the Supreme Court will, in

the not-distant future, find the jurisdictional holding in Boumediene I to be in error, order-

ing dismissal of these cases now might cause unnecessary additional delay that is con-

trary to the nature of habeas relief. See Carafas v. La Vallee, 391 U.S. 234, 238 (1968)

(habeas writ, “shaped to guarantee the most fundamental of all rights, is to provide an

effective and speedy instrument by which judicial inquiry may be had into the legality of

the detention of a person”).



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Case 1:05-cv-01429-UNA Document 70 Filed 04/12/2007 Page 7 of 8

CONCLUSION

For the foregoing reasons, this Court should stay this action pending Petitioners’

exhaustion of their DTA remedies in the Court of Appeals and resolution by the Su-

preme Court of the MCA jurisdictional issue in Hamdan or Ali, or resolution by the Su-

preme Court of a renewed petition for certiorari seeking review of Boumediene I.





Respectfully submitted,

/s/ David H. Remes
David H. Remes
D.C. Bar No. 370782
COVINGTON & BURLING LLP
1201 Pennsylvania Ave., N.W.
Washington, DC 20004-2401
(202) 662-5212 (tel)
(202) 778-5212 (fax)

Marc D. Falkoff, pro hac vice
D.C. Bar. No. 491149
NORTHERN ILLINOIS UNIVERSITY
COLLEGE OF LAW
DeKalb, IL 60614
(347) 564-5043 (tel)

Counsel for Petitioners


April 11, 2007
Washington, DC



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Case 1:05-cv-01429-UNA Document 70 Filed 04/12/2007 Page 8 of 8

CERTIFICATE OF SERVICE

I hereby certify that on April 11, 2007, I served the foregoing on the counsel

Peter D. Keisler
Douglas N. Letter
Joseph H. Hunt
Vincent M. Garvey
Judry L. Subar
Terry M. Henry
James J. Schwartz
Edward H. White
Robert J. Katerberg
Andrew I. Warden
Nicholas J. Patterson
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202) 514-4107
Fax: (202) 616-8470



listed below by causing an original and four copies to be filed with the Court Security
Officer.



























Attorneys for Respondents
























/s/ Jason M. Knott
Jason M. Knott
















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