UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ MOHAMMED AL-ADAHI, et al., : : Petitioners, : : v. : Civil Action No. 05-280 (GK) : BARACK H. OBAMA, et al., : : Respondents. : ______________________________:

MEMORANDUM ORDER

Petitioner Mohammed Al-Adahi (“Al-Adahi” or “Petitioner”) is

a Yemeni citizen who has been detained at the United States Naval

Base at Guantanamo Bay Cuba since 2002. Al-Adahi v. Obama, Civ.

No. 05-280,

, at *1 (Aug. 21, 2009)(“Mem. Op.”)

[Dkt. No. 459]. Al-Adahi filed a petition for a writ of habeas

corpus in 2005, which this Court granted on August 17, 2009.

The Government has appealed that ruling. This matter is before the

Court on the Government’s Motion for Stay Pending Appellate Review

(“Gov Mot.”) [Dkt. No. 466]. Upon consideration of the Motion,

Opposition, Reply, and the entire record herein, and for the

reasons set forth below, the Government’s Motion is granted.

I. BACKGROUND

In the wake of the Court’s granting of Al-Adahi’s habeas

petition, the Government decided to challenge this decision, Gov

Mot. at 1, and Petitioner then filed a Cross-Appeal [Dkt. No. 473].

Expedited briefing of the appellate matter was completed on

December 7, 2009. No date for oral argument has yet been set, as of this date. Seven days after noticing its appeal, the Government

filed the instant Motion. Petitioner filed his Opposition on

October 1, 2009 (“Pet.’s Opp’n”) [Dkt. No. 469], and the Government

filed its Reply on October 8, 2009 (“Gov Reply”) [Dkt. No. 479].

II. ANALYSIS

Courts may grant a motion for a stay pending appeal where the

moving party shows: (1) a likelihood of success on the merits of

the appeal; (2) “that it will suffer irreparable injury if the stay

is denied; (3) that issuance of the stay will not cause substantial

harm to other parties; and (4) that the public interest will be

served by issuance of the stay.” United States v. Philip Morris

Inc.,

(D.C. Cir. 2003) (citing Washington Metro

Area Transit Comm’n v. Holiday Tours, Inc.,

(D.C.

Cir. 1977)). Applying the test is not simply a matter of tallying

the factors that favor one party and comparing them to those

favoring the opposing party. Rather, the test is flexible, and

requires a weighing and balancing of the four factors. See Serono

Laboratories, Inc. v. Shalala,

(D.C. Cir.

1998); Cuomo v. U.S. Nuclear Regulatory Comm’n,

, 974

(D.C. Cir. 1985).

The moving party is not required to show that it is assured of

success on appeal. Rather, it can satisfy the first factor by

raising in its appeal “questions going to the merits so serious,

substantial, difficult and doubtful, as to make them a fair ground

for litigation and thus for more deliberative investigation.”

Holiday Tours,

; see also Comm. on the Judiciary of

-2- the United States House of Representatives v. Miers,

(D.C. Cir. 2009) (Tatel, J., concurring). The appeal

raises serious and difficult issues, including the proper

application of the well-established evidentiary standard in habeas

cases to the facts presented in this case. While the Court

believes that the Memorandum Opinion speaks for itself in terms of

how the case should be decided, it is true that it deals with

complicated issues that represent “fair ground for litigation and

thus for more deliberative investigation.” Holiday Tours,

. Therefore, the Government prevails on the first factor.

Second, the Court must assess whether denial of a stay would

cause the Government to suffer irreparable injury. Here the

Government argues that Al-Adahi’s release to Yemen would render the

United States “almost certainly . . . unable to regain custody of

him in the event that the Court of Appeals overturns this Court’s

grant of the writ.” Gov Mot. at 3. This potential release could

theoretically create a scenario where Petitioner is transferred to

Yemen, or another country, before the Court of Appeals has the

opportunity to decide the appeal. In such a scenario, if

Petitioner were released and if the Court of Appeals were to

reverse this Court’s decision, the Government is probably correct

that there is little chance that the United States would be able to

regain his custody. In that event, the United States would suffer

irreparable injury, and the safety of its citizens could be put at

risk. Petitioner does not address this point, despite the fact

-3- that denying the stay request presents a serious risk of harm to

the Government.

On the other hand, if the case is stayed there is no question

that Petitioner also suffers irreparable injury. It has been

nearly eight years since Al-Adahi was first detained at Guantanamo

Bay. He faces additional detention if the Motion is granted, as he

would remain at Guantanamo Bay for at least as long it takes for

the appellate litigation to run its course. Such a deprivation of

liberty constitutes serious and irreparable injury. Although the

Government has requested expedited review of the case, and the

briefing has been completed, no oral argument has been set and it

may well take the Court of Appeals many months to decide the

substantive legal issues presented, even after oral argument.

While Petitioner’s estimate of two to three years of further

litigation may overstate the delay,1 it will still be substantial.

See Pet.’s Opp’n at 4. Therefore, factors two and three sit in

equipoise, as both parties would potentially suffer irreparable

harm.

Finally, the Court must assess whether the public interest

would be served by the issuance of a stay. There is, as the

Government argues, significant benefit in having the Court of

Appeals clarify the evidentiary issues it raises. Gov Mot. at 5-6.

There can be little doubt that the Guantanamo Bay litigation

presents questions of “extraordinary public moment,” a

1 Petitioner could well be correct if the losing party seeks certiorari from the Supreme Court and it is granted.

-4- consideration which militates in favor of a stay. Landis v. North

American Co.,

(1936). Given the fact there are

numerous similarly situated petitioners before each judge in this

District, clarification of the legal landscape by the Court of

Appeals would be particularly useful. Thus, factor four supports

the granting of the Motion.

In carefully balancing each of these factors, the Court

concludes that a stay is appropriate. The appeal raises serious

and potentially far-reaching legal issues. There is no evidence

that the appeal was taken merely as a dilatory tactic designed to

lengthen Petitioner’s detention. Indeed, the Government has

appealed only a fraction of the cases in which it has not prevailed

(in fact, this may be the only case in which it has taken such an

appeal). The Court does not minimize in any way the significant

harm which Petitioner will suffer, but does conclude that the

balance of the equities favors granting the stay so that

significant legal issues can be resolved. Wherefore, it is hereby

ORDERED, that this Court’s August 17, 2009, Memorandum Opinion

and Order shall remain stayed until the conclusion of appellate

review.

/s/ December 9, 2009 Gladys Kessler United States District Judge

Copies to: Attorneys of Record via ECF

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