USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 1 of 11 [NOT SCHEDULED FOR ORAL ARGUMENT] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT MOHAMMAD RIMI, et al., ) Appellants, ) ) No. 10-5021 v. ) ) BARACK OBAMA, et al., ) Appellees. ) ) APPELLEES RENEWED MOTION FOR SUMMARY AFFIRMANCE AND OPPOSITION TO PETITIONER S MOTION FOR REMAND Appellees respectfully oppose petitioner Rimi s motion to remand his appeal for fact-finding. Further, because Rimi has conceded in his motion for remand that he is no longer suffering any collateral consequences of detention, appellees respectfully renew their request that this Court summarily affirm Rimi s appeal. 1. The procedural and factual background of this case is set out in detail our motion for summary affirmance filed on August 29, 2011 and again in our motion to govern filed on May 15, 2012. Briefly, Rimi is a habeas petitioner who was previously in the custody of the United States at the Guantanamo Bay Naval Base. He brought a habeas action challenging the lawfulness of his detention by the United States. In 2006, he was released from United States custody and control, 1
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 2 of 11 and transferred to Libya. In light of those changed circumstances, the district court dismissed his habeas petition, along with those of other former detainees, as moot. Following the district court s decision, a number of former detainees, including Rimi, appealed to this Court. On July 22, 2011, this Court resolved two lead cases of former detainees, Gul v. Obama et al., No. 10-5117 (D.C. Cir.), and Hamad v. Obama et al., 10-5118 (D.C. Cir.), holding that the habeas petitions of Gul and Hamad were moot. Gul v. Obama, 652 F.3d 12 (2011). Gul and Hamad petitioned for rehearing en banc, which this Court denied, and for certiorari, which the Supreme Court denied. Following the conclusion of proceedings in Gul, this Court ordered the parties to file motions to govern the various remaining cases of former detainees. Appellees moved for summary affirmance, contending that the cases of former detainees, including Rimi, were controlled by Gul and were therefore moot. Various petitioners made different arguments to this Court on why their cases should not be summarily affirmed. Rimi moved for indefinite continued abeyance of his appeal on the ground that, since the overthrow of the Qaddafi government in 2011, Rimi s counsel had been unable to contact him. Rimi Renewed Motion to Govern, filed May 16, 2012, at 3 4. Rimi attempted to distinguish Gul by contending that, unlike petitioners in Gul, he had been detained by the government of Libya upon his release from United States custody. Rimi Reply on Renewed 2
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 3 of 11 Motion to Govern, filed June 7, 2012, 2 3. Rimi further suggested that contact with counsel would allow his counsel to identify continuing collateral consequences of detention. Id. at 4 ( Accordingly, the lack of contact under these challenging circumstances should not serve as a basis for denying Petitioners the opportunity for a fact-specific analysis as to the collateral consequences of their incarceration and transfer, and by no means implies that Petitioners have forfeited their claims for relief from the redressable harms that are still impacting them. ). On August 10, 2012, this Court resolved the various motions to govern the remaining appeals of former detainees. It granted summary affirmance in a number of cases, where petitioners had offered no continuing, concrete collateral consequences of detention beyond those rejected by this Court in Gul. In Rimi s case (along with the cases of several other petitioners), the Court denied the motion for summary affirmance and instructed the Court to calendar the case for briefing and argument before a merits panel. On October 12, 2012, Rimi moved for leave to file a motion for remand to supplement the record and remand to the district court. This Court granted leave, and on November 5, 2012 Rimi so moved, contending that his prior detention by 3
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 4 of 11 the government of Libya constituted a collateral consequence of his detention by the United States. 1 2. Rimi s motion concedes the dispositive fact in this appeal that he is no longer in detention in Libya and is not suffering any continuing collateral consequences of detention. For this reason, his motion to remand is futile and should be denied. For the same reasons, the district court s order dismissing his case as moot should be summarily affirmed. a. Article III of the Constitution limits the subject matter jurisdiction of the federal courts to adjudication of actual ongoing controversies between litigants. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975). This requirement applies at all stages of review, not merely at the time the complaint is filed. Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks omitted). This Court applied this rule in the context of former Guantanamo detainees in Gul, explaining that [a] former detainee, like an individual challenging his parole, must... make an actual showing his prior detention or continued designation burdens him with concrete injuries. Gul, 652 F.3d at 17 (Spencer v. Kemna, 523 U.S. 1, 14 (1998)). 1 That motion was filed in a classified form. This response does not reference or rely on any classified material. 4
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 5 of 11 In other words, to establish a continuing case or controversy, a former detainee needs to establish continuing injuries redressable in a habeas proceeding against the United States. Rimi s sole argument against summary affirmance in his earlier motion to govern was that he had been detained in Libya, his counsel had not contacted him since the fall of the Qaddafi government, and it was unclear to what extent he was still detained by Libya or suffering from other restrictions. Rimi s motion for remand now concedes that he is no longer detained or subject to any restrictions by the government of Libya. In his motion to remand, Rimi identifies no other possible continuing collateral consequence of his United States detention. Indeed, in all of the various filings Rimi has made since this Court decided Gul, he has never even alleged that he is suffering any concrete, redressable collateral consequences other than his detention by Libya. Appellees previously moved for summary affirmance in this case. At the time, Rimi s counsel had not succeeded in contacting Rimi since the fall of the Qaddafi government. Rimi s counsel has now been in contact with Rimi and has determined that he is no longer subject to any restraints on liberty in Libya. Now that Rimi has conceded that he is no longer detained, and has not even alleged much less demonstrated any concrete, collateral consequence of detention that are redressable by a United States court and that were not rejected by this Court in Gul, merits briefing of whether Rimi s habeas claims are moot will serve no 5
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 6 of 11 purpose. This Court should therefore summarily affirm the district court s dismissal of his claims. b. For the same reason, Rimi s motion to remand should be denied. His various motions have contended, at bottom, that his past detention in Libya was attributable to the United States. Rimi s case is moot because he is not currently suffering any collateral consequences of his prior detention. Whether or not he was previously detained by the United States at Guantanamo or, as he alleges, at the behest of the United States following transfer to Libya, is beside the point. 2 Both parties in this appeal agree that Rimi was previously detained at some point by the United States and now, both parties agree that he is no longer detained by the United States or at the behest of the United States. He has identified no ongoing, concrete collateral consequences of detention that are redressable in this proceeding, and his habeas case is therefore plainly moot. A remand would be futile. 3. Rimi s motion to remand is improper for a second reason. His motion asks this Court to order relief from judgment (ordering the district to reopen the 2 Though irrelevant to the continued justiciability of Rimi s case, appellees dispute Rimi s allegation that he was detained in Libya at the behest of the United States. See Hodgkinson Declaration 5 ( In all cases of transfer, the detainee is transferred entirely to the custody and control of the other government, and once transferred, is no longer in the custody and control of the United States; the individual is detained, if at all, by the foreign government pursuant to its own laws and not on behalf of the United States. ). 6
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 7 of 11 case) based on documents never submitted in the first instance to the district court. Federal Rule of Appellate Procedure 10(a)(1) provides that only the original papers and exhibits filed in the district court constitute the record on appeal. Therefore, a motion seeking such relief based on new evidence is not properly made to this Court when the material has never been submitted to the district court. Given his concession that he is no longer in custody, the entire case should be dismissed as moot, but if petitioner wants relief based on new evidence, a motion to this Court is not the proper vehicle. 7
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 8 of 11 CONCLUSION For the foregoing reasons, the government respectfully requests that this Court deny Rimi s motion to remand and summarily affirm the dismissal of the case as moot. Respectfully submitted, STUART F. DELERY Principal Deputy Assistant Attorney General s/ Robert Mark Loeb ROBERT MARK LOEB (202) 514-4332 s/ Benjamin S. Kingsley BENJAMIN S. KINGSLEY (202) 353-8253 Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W., 7261 Washington, D.C. 20530-0001 Counsel for appellees 8
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 9 of 11 CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES (A) PARTIES AND AMICI Rimi et al. v. Obama et al. (No. 10-5021): Petitioners-appellants: Mohammad Rimi Omar Deghayes, as Next Friend of Rimi Respondents-appellees: Barack Obama, President of the United States Leon E. Panetta, Secretary of Defense Jeffrey Harbeson, Navy Rear Admiral Donnie Thomas, Army Colonel (B) RULINGS UNDER REVIEW Order of the district court: No. 05-2427 (D.D.C.), docket #30 (Rimi). (C) RELATED CASES These cases have not previously been before this Court or any other court. There were thirteen public appeals that are or were pending before this Court and that present or presented the same legal issues as these cases: Gul v. Obama, et al., No. 10-5117 (D.C. Cir.); Adel Hamad v. Obama, et al., No. 10-5118 (D.C. Cir.); i
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 10 of 11 Khan v. Obama, et al., No. 10-5019 (D.C. Cir.); Rimi v. Obama, et al., No. 10-5021 (D.C. Cir.); Hamoodah, et al. v. Obama, et al., No. 10-5023 (D.C. Cir.); Al Hajji, et al. v. Obama, et al., No. 10-5024 (D.C. Cir.); Chaman v. Obama, et al., No. 10-5130 (D.C. Cir.); Aminullah v. Obama, et al., No. 10-5131 (D.C. Cir.); Hamlily v. Panetta, et al., No. 10-5179 (D.C. Cir.); Habashi et al. v. Obama, et al., No. 10-5182 (D.C. Cir.); Zuhair v. Obama, et al., No. 10-5183 (D.C. Cir.); Barre v. Obama, et al., No. 10-5203 (D.C. Cir.); El-Mashad, et al. v. Obama, et al., No. 10-5232 (D.C. Cir.). s/ Benjamin S. Kingsley Benjamin S. Kingsley Civil Division, Appellate Staff U.S. Department of Justice 950 Pennsylvania Ave., NW, Room 7261 Washington, DC 20530 (202) 353-8253 benjamin.s.kingsley@usdoj.gov ii
USCA Case #10-5021 Document #1405212 Filed: 11/15/2012 Page 11 of 11 CERTIFICATE OF SERVICE I hereby certify that on November 15, 2012, I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit by using the appellate CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. s/ Benjamin S. Kingsley Benjamin S. Kingsley Civil Division, Appellate Staff U.S. Department of Justice 950 Pennsylvania Ave., NW, Room 7261 Washington, DC 20530 (202) 353-8253 benjamin.s.kingsley@usdoj.gov iii