AL-NASHIRI et al v. BUSH et al

Filing 199

MEMORANDUM ORDER. Public version of Memorandum Order dated October 11, 2012, denying 195 petitioner's motion for reconsideration of Judge Sullivan's May, 2012 Memorandum Opinion and Order. Signed by Judge Emmet G. Sullivan on November 1, 2012. (lcegs4)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ABD AL-RAHIM HUSSAIN MOHAMED
AL-NASHIRI,
Petitioner.,
vs.

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Filed with Classified
Information Security Oni~~Jr

CISO ~07?'_E:
Date _ _ _
10-"-/....;R;LI..;...'-c. _ _ _,....
•..;..._

) Civ. No. 08-1207 (RWR) (EGS)

BARACK OBAMA, et al.,

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Respondents.
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MEMORANDUM ORDER

Pending before the Court is Petitioner Abd Al-Rahim Hussain
Mohamed Al-Nashiri's ("Mr. Al-Nashiri") motion to reconsider the
classified Memorandum Opinion and Order filed May 7, 2012
(hereinafter "Opinion")

(see May 9, 2012 Minut.e Order) or,

alternatively, to stay the Order and amend it to permit an
interlocutory appeal.

Upon consideration of the motion, the

opposition, and the reply thereto, the relevant caselaw, and the
record in these proceedings as a whole, and for the reasons set
forth herein, petitioner's motion is DENIED.
I .

BACKGROUND
The factual and procedural history regarding this matter are

set forth in the May 7, 2012 Opinion, familiarity with which is
assumed.

Briefly, in 2011, the government filed an identical

request in ten habeas corpus cases brought by detainees at

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Guantanamo Bay.

The government notified the Court

the government's request, and by consent of the Merits Judges
presiding over the ten underlying habeas cases, the motions were
transferred to the undersigned for coordinated consolidation and
resolution.

Most of the detainees opposed the government's

request; some filed joint oppositions, and some filed individual
oppositions.
On May 7, 2012, this Court issued its Opinion and Order
granting the government's request but imposing additional
conditions

upon the

government

Al-Nashiri is the

sole petitioner who has moved to reconsider, stay, or for
certification of interlocutory appeal.

His motion is ripe for

determination by the Court.

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II.

STANDARD OF REVIEW
Motions for reconsideration of interlocutory orders "may be

revised at any time before the entry of a judgment adjudicating
all the claims and all the parties' rights and liabilities."
Fed. R. Civ. P. 54(b}.

Although courts have discretion to

reconsider their interlocutory orders, they should be "loathe to
do so in the absence of extraordinary circumstances such as where
the initial decision was clearly erroneous and would work a
manifest injustice."

Christianson v. Colt Indus. Operating

Corp., 486 U.S. 800, 817 (1988}
marks omitted}.

(internal citations and quotation

"In particular, a court should grant

reconsideration only when the movant demonstrates (1} an
intervening change in the law;

(2) discovery of new evidence not

previously available; or (3} a clear error of law in the first
order."

In re Guantanamo Bay Detainee Litig., 706 F. Supp. 2d

120, 122-23 (D.D.C. 2010) (internal citations and quotations
omitted}.
In determining whether to stay an order pending appeal, the
Court considers the same four factors it would in resolving a
motion for a preliminary injunction: "(1} whether the stay
applicant has made a strong showing that he is likely to succeed
on the merits;

(2) whether the applicant will be irreparably

injured absent a stay;

(3) whether the issuance of a stay will

substantially injure the other parties interested in the

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proceedings; and ( 4) where the public interest lies."

Nken v.

Holder, 556 U.S. 418, 434 (2009)

"It is the

(citations omitted).

movant's obligation to justify the Court's exercise of such an
extraordinary remedy."

Cuomo v. United States Nuclear Regulatory

Comm'n, 772 F. 2d 972, 978 (D.C. Cir. 1985).

Finally, in granting a request for an interlocutory appeal,
a district court must certify 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."

28 U.S.C. 1292(b).

"Although courts have

discretion to certify an issue for interlocutory appeal,
interlocutory appeals are rarely allowed . .

. the movant bears

the burden of showing that exceptional circumstances justify a
departure from the basic policy of postponing appellate review
until after the entry of final judgment."

Judicial Watch, Inc.

v. Nat'l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 20 (D.D.C.

2002)

(citations omitted) .

III. ANALYSIS
Mr. Al-Nashiri has identified no error in this Court's May
2012 Opinion, nor does he argue there has been a change in the
law since that time.
success on the merits.

He does not discuss his likelihood of
He does not identify a controlling

question of law on which there is a substantial difference of
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opinion, nor does he argue that resolution by the Court of
Appeals would materially advance the disposition of his habeas
corpus litigation.

Rather, he argues that his circumstances have

changed since this matter was previously considered by the Court
.- namely, he "now faces an active capital murder prosecution in
military commissions proceedings in Guantanamo Bay."
3.

Mr.

Al~Nashiri

Motion at

argues that

would interfere with his due process rights in his
commissions prosecution.

Accordingly, he requests that the Court reconsider, stay,
and or certify its Opinion for appeal, and he additionally

The government responds that Mr. Al-Nashiri's
have not changed in any material manner:

circums~ances

when he filed his

opposition to the government's original motion in 2011, he was
alre~dy

aware he could face capital'charges in the military

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commission proceedings and brought that fact to the Court's
attention at least three times.

Gov't Opp'n to Mot. for

Reconsid. at 6 (citing Mr. Al-Nashiri's Opp'n filed May 27, 2011
at 2, 3, 8).

More fundamentally, the government argues that this

Court's May 2012 decision governs the government's rights and

The government is correct.

Indeed, in their initial filings in

this matter in 2011, many of the petitioners asked the Court to
reject the government's request
because
tribunals' - such as the Military Commissions - consideration
in other proceedings.

The Court rejected

this claim, noting that "these arguments fall outside the scope
of petitioners' habeas review."

Opinion 16.

The government

argues - and Mr. Al-Nashiri does not dispute - that:
the Court to supervise
for military commission
, nor s
re any reason for the Court to do so.
The Court's May 9, 2012 Order has no effect on
~ns the Government may have
lllllllllin military commission procee
, or any
corresponding rights Petitioner might potentially assert in
such proceeding.
Gov't Opp'n at 7.

The Court agrees with the government that it

does not have jurisdiction to order
in military commission proceedings.

The only

issues this Court resolved - and, so far as the Court is aware,
the only issues it had the power to resolve - concerned the
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parties' rights and obligations with respect to
in proceedings in this court, namely, the petitions
for habeas corpus.

As a necessary corollary, therefore, this

Court could only determine the government's rights
as relates to the habeas proceedings.

The May

2012 Opinion does not impact the parties' rights or obligations
under any other law, or in any other proceedings.

Accordingly,

Mr. Al-Nashiri's prosecution before the military commission does
not constitute grounds for reconsideration, stay, or
certification for interlocutory appeal.
Finally, the Court turns to Mr. Al-Nashiri's additional
request for relief,

Essentially, counsel request that they be
from their obligations under the Top Secret/Sensitive
Compartmented Information Orders entered by Judge Hogan in In re:

Guantanamo Bay Detainee Litig., Case 08-mc-442, which prohibit
petitioners' counsel from disclosing such information.
1496.

Petitioner's request is denied.

See Doc.

Judge Hogan's protective

orders are not before this Court: the sole issue transferred to
the undersigned is the government's obligations under certain
orders in the habeas proceedings.

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Moreover, even if the protective orders were before this Court,
Mr. Al-Nashiri's counsel have provided no basis for overturning
the orders; as discussed above, this Court's May 2012 Opinion
does not govern the parties' rights or obligations in the

IV.

CONCLUSION

For the foregoing reasons, Mr. Al-Nashiri has not met his
heavy burden to prevail on his motion for reconisderation, for
stay pending appeal, or for certification of interlocutory
appeal.

Accordingly, it is hereby ORDERED that petitioner's

motion is DENIED.
Signed:

Emmet G. Sullivan
United States District Judge
October 11, 2012
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