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Doe v. Mattis

United States District Court, District of Columbia

January 23, 2018

JOHN DOE, Petitioner,
v.
GEN. JAMES N. MATTIS, in his official capacity as SECRETARY OF DEFENSE, Respondent.

          MEMORANDUM OPINION

          TANYA S. CHUTKAN, UNITED STATES DISTRICT JUDGE.

         Petitioner-a United States citizen-remains in Iraq in the custody of U.S. armed forces. While Petitioner now has access to counsel in order to pursue this habeas petition, the Department of Defense (“Defense Department”) may seek to transfer him prior to this court's decision on his petition. The Defense Department is unable to provide a timeline for when this transfer might take place. Petitioner has requested that this court enjoin the Defense Department from transferring him to another country during the pendency of this litigation. Upon consideration of the parties' filings, the oral arguments of counsel, and for the reasons stated herein, Petitioner's Motion Regarding Continued Interim Relief will be GRANTED in part and DENIED in part. The court will not enjoin the Defense Department from transferring the Petitioner, but will require the Defense Department to provide the court and Petitioner's counsel seventy-two hours' notice prior to any such transfer.

         I. BACKGROUND

         On December 23, 2017, this court entered an order (1) denying the Defense Department's Motion to Dismiss (ECF No. 11), (2) requiring the Defense Department to permit the American Civil Liberties Union Foundation (“ACLUF”) immediate and unmonitored access to Petitioner to determine whether he wanted the ACLUF to pursue this action on his behalf, and (3) requiring the Defense Department to “refrain from transferring the detainee until the ACLUF informs the court of the detainee's wishes.” (ECF No. 30). On January 5, 2018, the ACLUF informed the court that Petitioner wanted the ACLUF to represent him in this action. (ECF No. 32 (“Mot.”) at 1). The ACLUF also requested that the court extend the interim relief provided in its December 23 Order, and order the Defense Department not to transfer Petitioner until the court renders its decision on Petitioner's habeas petition. (Id. at 2).

         On January 18, 2018, the court held a hearing on Petitioner's motion for continued relief. In response to the court's inquiry as to whether the Defense Department intended to transfer the Petitioner within the next forty-eight hours, Department counsel indicated that it had no basis to believe that a transfer would take place within that timeframe. Counsel added, however, that it is the Defense Department's position that it has the authority to transfer Petitioner as soon as another country is ready to receive him. Given the Defense Department's position, and the court's impending ruling on Petitioner's motion, the court ordered the Defense Department to refrain from transferring Petitioner until Tuesday, January 23, 2018. (ECF No. 43).

         At the January 18 hearing, the Defense Department also offered to provide the court with a classified declaration which would provide more detail regarding the Department's position as to Petitioner. On January 19, 2018, the Defense Department filed a classified ex parte declaration through a Classified Information Security Officer. (See ECF No. 44). That evening, the Defense Department filed a redacted, sealed version of the same declaration. (ECF No. 45-1 (“Classified Declaration”)).

         On January 22, 2018, the court held a status hearing, during which the court asked the parties whether they opposed an order requiring the Defense Department to provide the court and Petitioner's counsel notice prior to transferring Petitioner. The Defense Department indicated that it would object to such an order. Petitioner's counsel informed the court that Petitioner would not object to such an order, as long as he had the opportunity to contest his transfer.

         II. LEGAL STANDARD

         In order to prevail on a motion for a preliminary injunction, the movant must show that: “[1] he is likely to succeed on the merits, [2] . . . he is likely to suffer irreparable harm in the absence of preliminary relief, [3] . . . the balance of equities tips in his favor, and [4] . . . an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). A preliminary injunction is an “extraordinary remedy” that is “never awarded as of right.” Id. at 24 (citing Munaf v. Geren, 553 U.S. 674, 689-90 (2008)). The D.C. Circuit has applied a sliding scale approach to evaluating preliminary injunctions, such that an unusually strong showing on one factor could make up for a weaker showing on another. See, e.g., Davis v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). It has been suggested that a movant's showing of a likelihood of success, however, is a “‘free-standing requirement for a preliminary injunction.'” Sherley v. Sebelius, 644 F.3d 388, 393 (D.C. Cir. 2011) (quoting Davis, 571 F.3d at 1296 (Kavanaugh, J., concurring)).

         III. DISCUSSION

         A. Likelihood of Success on the Merits

         Petitioner has shown a likelihood of success on the merits of his claim that there should be some restriction on the Defense Department's ability to transfer him during the pendency of this litigation. Prior to transferring Petitioner, the Defense Department must present “positive legal authority” for his transfer. See Omar v. McHugh, 646 F.3d 13, 24 (D.C. Cir. 2011) (“None of this means that the Executive Branch may detain or transfer Americans or individuals in U.S. territory at will, without any judicial review of the positive legal authority for the detention or transfer.”); see also Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 8 (1936) (power to provide for extradition “is not confided to the Executive in the absence of treaty or legislative provision”).

         The court has reviewed the classified information provided by the Defense Department and finds that it does not present “positive legal authority” for Petitioner's transfer. Neither does the Defense Department's assertion that “international relations” with the receiving country would be harmed should the court prohibit his transfer at this time.

         Despite its failure to present legal authority for Petitioner's transfer, such as an extradition request or an allegation of criminal conduct committed in the receiving country, the Defense Department maintains that the court nonetheless cannot restrict Petitioner's transfer while it considers his claim of unlawful detention. Relying on Munaf v. Geren, 553 U.S. 674 (2008), and Kiyemba v. Obama (“Kiyemba II”), 561 F.3d 509 (D.C. Cir. 2009), the Defense Department argues that the court is barred from restricting Petitioner's transfer because of the ‚Äúsignificant ...


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