The opinion of the court was delivered by: John D. Bates United States District Judge
MEMORANDUM OPINION & ORDER
Before the Court are respondents' motions for certification for interlocutory appeal pursuant to 28 U.S.C. § 1292(b) and for a stayof proceedings pending appeal. These motions are fully briefed and the Court heard oral argument on May 21, 2009. For the reasons explained below, both of respondents' motions will be granted.
The three petitioners in these cases are detained by the United States at Bagram Air Field in Afghanistan and have been in U.S. custody for more than six years. Each petitioner seeks to challenge the legality of his detention through a petition for a writ of habeas corpus. Respondents filed motions to dismiss each habeas petition on jurisdictional grounds. They pointed out that § 7(a) of the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 ("MCA"), strips federal district courts of jurisdiction to entertain a habeas petition filed by "an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant." MCA § 7(a) is constitutional, respondents contended, because petitioners such as these have no right to invoke the Suspension Clause of the Constitution, Art. I § 9 cl. 2, which permits the suspension of habeas corpus rights in certain circumstances. Respondents concluded that absent a statutory basis for habeas jurisdiction, this Court was required to dismiss these habeas petitions.
On April 2, 2009, this Court denied respondents' motions to dismiss the habeas petitions filed by these detainees.*fn1 In doing so, the Court interpreted and applied the multi-factor test set forth by the Supreme Court in Boumediene v. Bush, 128 S.Ct. 2229 (2008). This Court held that "Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time -- here, over six years -- without adequate process may invoke the protections of the Suspension Clause." Al Maqaleh v. Gates, 604 F. Supp. 2d 205, 235 (D.D.C. 2009). Because MCA § 7(a) does not amount to a valid suspension of the writ of habeas corpus under the Suspension Clause, the Court held that MCA § 7(a) constitutes an unconstitutional suspension of habeas rights as applied to these petitioners. Id.
The April 2 Memorandum Opinion represents the only interpretation and application to date of the multi-factor test established in Boumediene. All habeas petitions by Bagram detainees have been filed in the U.S. District Court for the District of Columbia, and those petitions were consolidated before the undersigned judge of this Court for determination of the jurisdictional issue. Thus, no other court (and no other judge of this Court) has had occasion to interpret or apply the Boumediene test to detainees at Bagram.
II. Motion for Certification for Appeal
Certification for interlocutory appeal is governed by 28 U.S.C. § 1292(b), which permits a district court to certify an order for interlocutory appeal if the court states in writing that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." Interlocutory appeals under § 1292(b) are only warranted in "exceptional circumstances." See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978); see also Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 20 (D.D.C. 2002) ("A party seeking certification pursuant to § 1292(b) must meet a high standard to overcome the 'strong congressional policy against piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by interlocutory appeals.'") (quoting United States v. Nixon, 418 U.S. 683, 690 (1974)). Here, petitioners do not dispute that the jurisdictional issues at the heart of the Court's April 2 Memorandum Opinion involve "controlling question[s] of law." Instead, petitioners contend that the requirements of § 1292(b) are not satisfied because (1) these cases do not present "substantial ground[s] for difference of opinion" and (2) certification of appeal will not "materially advance the ultimate termination of the litigation."
The first issue, then, is whether there are substantial grounds for difference of opinion. Respondents argue that several aspects of the Court's Memorandum Opinion present grounds for difference of opinion. They assert, for example, that the Court misinterpreted Boumediene in conducting its analysis of U.S. control and jurisdiction at Bagram. See Resps.' Mot. at 6. Petitioners point out that respondents essentially repeat their previous litigation position regarding U.S. control and jurisdiction, and a party's own disagreement with a district court's conclusion does not constitute "substantial ground[s] for difference of opinion." See Pet'rs' Opp. at 6-8. Petitioners argue that a conflict is needed to satisfy this aspect of § 1292(b) -- either between judges on the same court or between circuits.
Of course, the kind of conflict petitioners maintain is necessary could not have arisen here. All habeas petitions by Bagram detainees pending in the U.S. District Court for the District of Columbia were consolidated before this judge for determination of the jurisdictional issue, and no Bagram detainee has filed a habeas petition in any other federal district court. To be sure, a restatement of a party's litigation position would not normally raise substantial grounds for difference of opinion under § 1292(b). But these cases present extraordinary circumstances. This Court's interpretation and application of Boumediene was not the mechanical, routine task petitioners apparently take it to have been. Although this Court believes that its conclusions are correct, given the novelty of the issues courts could reasonably differ in the application of the multi-factor Boumediene test to the Bagram Theater Internment Facility. Hence, the Court finds that the first requirement of § 1292(b) -- that the case "involves . . . controlling question[s] of law as to which there [are] substantial ground[s] for difference of opinion" -- is satisfied.
The second issue is whether "an immediate appeal from the order may materially advance the ultimate termination of the litigation." See § 1292(b). If this Court is reversed on appeal, then these cases will be terminated (unless further appeal is sought). Petitioners argue that if this Court is not reversed, then the ultimate termination of the litigation will be protracted, not advanced, by the appeal. See Pet'rs' Opp. at 8-12. Ultimate termination of this litigation will be hastened, petitioners contend, if these cases proceed to determinations on their merits now. Should respondents seek to challenge this Court's interpretation and application of Boumediene, they may do so at the conclusion of a merits determination.
When there are substantial grounds for difference of opinion as to a court's subject matter jurisdiction, courts regularly hold that immediate appeal may "materially advance the ultimate termination of the litigation." See, e.g., APCC Servs., Inc. v. AT&T Corp., 297 F. Supp. 2d 101, 109 (D.D.C. 2003) ("[A]lthough plaintiffs argue correctly that they will be prejudiced by further delays, in the event that it is ultimately found that this Court lacks jurisdiction to litigate these cases, it would be far better for all concerned, including plaintiffs, to have these matters resolved now, as opposed to sometime in the distant future."); Lemery v. Ford Motor Co., 244 F. Supp. 2d 720, 728 (S.D. Tex. 2002) ("It would pain the Court to see both attorneys . . . [and parties] proceed to judgment after considerable expense and delay, only to discover that the judgment must be overturned on appeal because the federal judiciary lacks subject matter jurisdiction."). Moreover, interlocutory appeal is warranted where the jurisdictional determination will impact numerous cases. See Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 24 (2d Cir. 1990). Here, the Court has already determined that federal district courts have jurisdiction to hear these three pending cases, and additional cases might be filed by other Bagram detainees in U.S. custody as well. Hence, the Court agrees with cases like APCC Services, which conclude that an appeal as to a court's subject matter jurisdiction may "materially advance the ultimate termination of the litigation."
In sum, the requirements of § 1292(b) are satisfied here. These cases present the kind of extraordinary jurisdictional issue suitable for certification for interlocutory appeal. Accordingly, respondents' motion ...