United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge
the denial of his Petition for Writ of Habeas Corpus,
see Mem. Op., ECF No. 45 [hereinafter Mem. Op.],
Petitioner Aarno Olavi Liuksila asks the court to stay his
extradition pending appeal to the D.C. Circuit, see
Pet.'s Mot. to Stay, ECF No. 48 [hereinafter Pet.'s
Mot.]. Respondent opposes Petitioner's request.
See Resp.'s Opp'n to Pet.'s Mot., ECF
No. 50 [hereinafter Resp.'s Opp'n]. For the reasons
discussed below, Petitioner's Motion is granted.
court recently discussed the applicable standard for a stay
pending appeal in Cigar Ass'n of America v. U.S. Food
& Drug Admin., 317 F.Supp.3d 555, 560-61 (D.D.C.
2018). The court need not repeat that discussion here, but it
suffices to say that the court applies the “sliding
scale” approach that remains the law of this Circuit.
See Id. Here, the four factors the court must
consider weigh in favor of a stay.
for the factor of likelihood of success on the merits, there
can be little doubt that Petitioner's appeal will involve
“serious legal questions going to the merits, so
serious, substantial, difficult as to make them a fair ground
of litigation and thus for more deliberative
investigation.” Population Inst. v. McPherson,
797 F.2d 1062, 1078 (D.C. Cir. 1986) (quoting Wash.
Metro. Area Transit Comm'n v. Holiday
Tours, Inc., 559 F.2d 841, 844 (D.C. Cir.
1977)). In denying Petitioner's motion, the court urged
the D.C. Circuit to revisit and reverse McGowen v. United
States, 105 F.2d 791 (D.C. Cir. 1939), which compelled
the court's conclusion that the U.S. five-year
limitations period has not run on Plaintiff's conduct.
See Mem. Op. at 2-4, 30-35. Petitioner's appeal
promises to challenge the continuing validity of
McGowen and therefore will present serious and
substantial legal questions on the merits.
Petitioner will suffer irreparable harm if a stay is not
granted. Without a stay, Petitioner could be extradited to
Finland to face criminal charges. The United States has not
promised otherwise. See Resp.'s Opp'n at 5
n.4 (stating only that it will not surrender Petitioner
during the pendency of this stay motion). Although the
Supreme Court has held in a different context that removal
from the United States by itself is not “categorically
irreparable, ” Nken v. Holder, 556 U.S. 418,
435 (2009), this case stands on a much different footing.
Unlike the petitioner in Nken, Petitioner here will
not merely have to leave the United States; he will also face
prosecution in Finland, and possible loss of liberty, for an
offense that might not be extraditable under the U.S.-Finland
Extradition Treaty because it is time-barred. See Stogner
v. California, 539 U.S. 609, 613 (2003) (“[A]n act
condoned by the expiration of the statute of limitations is
no longer a punishable offense.”) (quoting H. Black,
American Constitutional Law § 266, at 700 (4th
ed. 1927)). Furthermore, his extradition will render his
appeal moot. See Lindstrom v. Graber, 203 F.3d 470,
474 (7th Cir. 2000); Artukovic v. Rison, 784 F.2d
1354, 1356 (9th Cir. 1986). Such devastating consequences
constitute irreparable harm. Demjanjuk v. Meese, 784
F.2d 1114, 1118 (D.C. Cir. 1986) (Bork, J.) (although denying
stay, observing that “imminent extradition of
petitioner to Israel may qualify as a threat of irreparable
harm”); Nezirovic v. Holt, No. 7:13CV428, 2014
WL 3058571, at *2 (W.D. Va. July 7, 2014) (finding
irreparable harm on the ground that habeas petitioner's
appeal would be moot if he were extradited); Gamez v.
Stafford, No. 12-CV-1632, 2012 WL 4471579, at *2 (S.D.
Cal. Sept. 25, 2012) (same).
both the government and public interests weigh in favor of a
stay. See Nken, 556 U.S. at 435 (noting that the
third and fourth factors-harm to the opposing party and the
public interest-“merge when the Government is the
opposing party”). There is a public interest in
ensuring that a person is not wrongfully surrendered to face
prosecution abroad. Cf. Id. at 436 (observing that
“there is a public interest in preventing aliens from
being wrongfully removed, particularly to countries where
they are likely to face substantial harm”). That public
interest is only heightened in this case, where Petitioner
will argue that the D.C. Circuit should harmonize its
interpretation of the federal criminal tolling statute with
nearly every other federal circuit to have addressed the
issue. There is public interest in promoting uniformity in
the law. Cf. N. States Power Co. v. Prairie Island
Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 464 (8th
Cir. 1993) (recognizing, in the context of a preliminary
injunction, a public interest in “uniformity in the
regulation of radioactive materials”). Although
Respondent is correct that the public likewise has an
interest in the United States promptly fulfilling its legal
obligations to its treaty partners, see Artukovic,
784 F.2d at 1356, the balancing of hardships in this case
Petitioner's Motion to Stay is granted. This court's
order denying the habeas corpus petition, see Order,
ECF No. 46, is stayed pending the conclusion of appellate
proceedings in the D.C. Circuit, including any en
banc review. Petitioner shall remain on the ...