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Case 1:05-cv-01429-UNA Document 95 Filed 10/05/2007 Page 1 of 3



IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA









































Respondents.





Petitioners,



v.



____________________________________
)


ABDULSALAM ALI
)
ABDULRAHMAN AL HELA, et al.,
)

)



)

)



)
)


GEORGE W. BUSH, et al.,
)
)




)
____________________________________)
)

SAEED MOHAMMED SALEH
)
HATIM, et al.,
)



)


Petitioners,

)

)





v.


)



)

GEORGE W. BUSH, et al.,
)
)




)
____________________________________)



Respondents.










































Civ. No. 05-1048 (RMU)

Civ. No. 05-1429 (RMU)



PETITIONERS’ REPLY TO RESPONDENTS’

OPPOSITIONS TO MOTIONS TO RECONSIDER AND
VACATE AND MOTIONS FOR PRELIMINARY RELIEF

1.

The government argues that the Court, having decided to resolve the govern-

ment’s motions to dismiss, “had no choice but to rule as it did” and dismiss the cases. Recon.

Opp. 2. That conclusion is incorrect. The D.C. Circuit has provided that this Court may dismiss

these cases or hold them in abeyance. Order, Al Ginco v. Bush, No. 06-5191, at 2 (June 7, 2007).

Other judges of this Court have rejected the government’s conclusion. Recon. Mot. 4. See also

Ruzathullah, Ex. B, Pet’rs’ Not. of Supp’l Auth., Al Hela (Doc. 102), and Hatim (Doc. 92).

2.

The government also argues that the Court cannot “change course now.” TRO

Opp. 4-5. But the government undermines its own argument that the Court is powerless to com-



Case 1:05-cv-01429-UNA Document 95 Filed 10/05/2007 Page 2 of 3



pel interim compliance with the Habeas Orders by acknowledging that the Court could stay its

order dismissing these cases. TRO Opp. 7-8. The government also elevates form over substance

in arguing that the Court could stay its order even if the pendency of petitioners’ Rule 59(e) mo-

tion does not render the Court’s dismissal order non-final. Id. It is the government that has re-

sorted to “self-help,” TRO Opp. 9, in disregarding the Habeas Orders while petitioners’ recon-

sideration motions are pending.

3.

Nor in seeking reconsideration do petitioners rely on arguments that they could

have made at an earlier stage. See TRO Opp. 4. Briefing on the government’s motion to dismiss

these cases concluded on May 1, 2007, before (1) the Supreme Court granted certiorari in Boum-

ediene, (2) the D.C. Circuit withdrew its mandates in Boumediene and Kiyemba and withheld its

mandate in Paracha, and (3) the other judges of this Court denied or deferred consideration of

the government’s motions to dismiss.1 In light of these developments, Judge Collyer reconsid-

ered and vacated her order dismissing the cases assigned to her. Recon. Mot. 4.2

4.

The government relies on cases that have no bearing on the instant motion. Max-

well v. Snow, 409 F.3d 354 (D.C. Cir. 2005), affirms that the decision of the first panel of a Court

of Appeals to address an issue binds other panels that later face the same issue. The question

here is whether this Court has latitude to stay rather than dismiss these cases. As discussed, the


1 See Gov’t Reply to Opp. to Mot. to Dismiss, Al Hela (D.D.C. May 1, 2007) (Doc. 91), and
Hatim, (D.D.C. May 1, 2007) (Doc. 75).
2 In opposing petitioners’ motions for interim relief, the government relies on decisions of this
court issued before the Supreme Court granted certiorari in Boumediene. See TRO Opp. 5 n.1
(citing Hicks and Zalita decisions). Hamlily, see TRO Opp. 12 n.6, addressed the D.C. Circuit’s
authority to issue 30-day notice orders under the DTA, not the District Court’s authority to pre-
serve its habeas jurisdiction). The government also ignores the fact that the D.C. Circuit has de-
ferred consideration of the government’s motion to vacate the 30-day notice orders and dismiss
eleven of these cases. Recon. Mot. 3 (citing order in Abdah v. Bush, No. 05-5224).



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Case 1:05-cv-01429-UNA Document 95 Filed 10/05/2007 Page 3 of 3



Court has such latitude. Deering Milliken, Inc. v. FTC, 647 F.2d 1124 (D.C. Cir. 1978), affirms

that a District Court lacks jurisdiction to alter a judgment of its own while an appeal from the

judgment is pending. No appeal has been taken from this Court’s order dismissing these cases.

CONCLUSION

Petitioners’ motions to reconsider and vacate, and their motions for preliminary relief,

should be granted. Petitioners respectfully refer the Court to the proposed orders filed with their

pending motions.





Respectfully submitted,

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

Counsel for Petitioners

October 5, 2007
Washington, D.C.









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