Gherebi v. Bush, CIV.A. 04CV1164RBW.

• Decision Date: 29 September 2004
• Docket Number: No. CIV.A. 04CV1164RBW.,CIV.A. 04CV1164RBW.
• Parties: Falen GHEREBI, et al., Petitioners, v. George W. BUSH, President of the United States, et al., Respondents.
• Court: U.S. District Court — District of Columbia

338 F.Supp.2d 91

Falen GHEREBI, et al., Petitioners, v. George W. BUSH, President of the United States, et al., Respondents.

No. CIV.A. 04CV1164RBW.

United States District Court, District of Columbia.

September 29, 2004.

Erwin Chemerinsky, Durham, NC, Stephen Yagman, Yagman & Yagman & Reichmann, Venice Beach, CA, for Plaintiff.

Paul Clement, U.S. Department of Justice Office of Solicitor General, Terry Marcus Henry, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER CONFIRMING THIS COURT AS THE APPROPRIATE FORUM FOR RESOLUTION OF PETITION FOR WRIT OF HABEAS CORPUS

JOYCE HENS GREEN, District Judge.

I. Background

This case, in which a detainee at the Guantanamo Bay Naval Base seeks issuance of a writ of habeas corpus, has a lengthy procedural history. In January 2002, a group of journalists, lawyers, professors, and clergy members commenced litigation in the United States District Court for the Central District of California seeking habeas relief for a class of unidentified detainees held by the United States at Guantanamo Bay. The District Court dismissed the case partially on the ground that the individuals who were proceeding on behalf of the detainees did not have appropriate standing to represent them. Coalition of Clergy v. Bush, 189 F.Supp.2d 1036 (C.D.Cal.2002). The United States Court of Appeals for the Ninth Circuit affirmed the District Court's ruling on lack of standing but vacated the lower court rulings that there was no jurisdiction over the case in the Central District of California and that no United States court could adjudicate any individual habeas case of any of the Guantanamo Bay detainees. Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir.2002), cert. denied, 538 U.S. 1031, 123 S.Ct. 2073, 155 L.Ed.2d 1060 (2003).

Subsequently, Belaid Gherebi as next friend filed an amended petition for writ of habeas corpus directly with the Ninth Circuit on behalf of his brother, Faren Gherebi.¹ The amended petition alleges that Faren Gherebi has been unlawfully detained at Guantanamo Bay since approximately January 11, 2002 in violation of the United States Constitution and the Third Geneva Convention. Named as respondents were President George W. Bush, Secretary of Defense Donald H. Rumsfeld, and "1,000 unknown named United States military personnel and government officers and/or officials." Upon the government's motion, the case was transferred from the Court of Appeals to the United States District Court for the Central District of California, where it was dismissed for lack of jurisdiction. Gherebi v. Bush, 262 F.Supp.2d 1064 (C.D.Cal.2003). Based primarily on its reading of Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936, 94 L.Ed. 1255 (1950), the District Court ruled that no federal court has jurisdiction over the petitioner's claims in light of the finding that the Guantanamo Bay Naval Base is not within sovereign United States territory. 262 F.Supp.2d at 1067.

The Ninth Circuit reversed the District Court in a decision filed on December 18, 2003, holding that the District Court erred when it ruled that Johnson v. Eisentrager precluded federal district courts from exercising jurisdiction over Gherebi's petition. 352 F.3d 1278, 1282-83 (9th Cir.2003). The decision also held that personal jurisdiction over Secretary of Defense Donald Rumsfeld could be asserted in the Central District of California. 352 F.3d at 1284. The Ninth Circuit, however, expressly left open the issue of whether transfer of the case to a different district court would be appropriate. Id.

On petition for writ of certiorari, the Supreme Court vacated the Ninth Circuit's decision, ___ U.S. ___, 124 S.Ct. 2932 (2004), and remanded the case back to the Circuit Court for consideration of the decision issued two days earlier in Rumsfeld v. Padilla, 542 U.S. ___, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004). The Padilla case involved a U.S. citizen who was apprehended by federal agents in New York, designated an "enemy combatant" pursuant to an order issued by President Bush to Secretary of Defense Rumsfeld, and subsequently detained in a Navy brig in Charleston, South Carolina. Relying on two generally recognized rules governing jurisdiction in habeas cases, the Supreme Court ruled that the detainee in Padilla could not pursue his petition in the Southern District of New York. The first rule invoked by the Supreme Court was the "immediate custodian rule," which provides that in most cases there is usually only one proper respondent to a given habeas petition under 28 U.S.C. § 2241 and that the proper respondent is usually the person who is the immediate physical custodian of the detainee. 124 S.Ct. at 2720-21. The second rule invoked by the Supreme Court was the "district of confinement" rule, which provides that in most habeas cases, a detainee is required to file his petition for habeas relief in the jurisdiction in which he is actually confined. 124 S.Ct. at 2722-23. Concluding that the facts of the case did not warrant the application of any exceptions to the immediate custodian and district of confinement rules and finding that Padilla's immediate custodian was the commander of the Navy brig in South Carolina, the Court concluded that the detainee was required to pursue his habeas action in that jurisdiction. 124 S.Ct. at 2724.

On remand from the Supreme Court, the Ninth Circuit in Gherebi confirmed its earlier decision and held that nothing in Padilla precluded it from exercising jurisdiction over Gherebi's petition and transferring the proceedings to the appropriate forum. 374 F.3d 727, 739 (9th Cir.2004). A key factor in the Ninth Circuit's decision was the Supreme Court's recognition of exceptions to the immediate custodian and district of confinement rules "where an American citizen is detained outside the territorial jurisdiction of any district court." Id. at 739 (quoting Padilla at 124 S.Ct. at 2718 n. 9). The Ninth Circuit interpreted both Padilla and the Supreme Court's decision in Rasul v. Bush, 542 U.S. ___, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004), to allow the application of the exception to the immediate custodian and district of confinement rules in cases filed by aliens detained at Guantanamo Bay. Accordingly, the Ninth Circuit transferred the case to the United States District Court for the District of Columbia as the most appropriate forum, citing cases brought by parties confined overseas against federal government officials and litigated in the District of Columbia. Id.

Upon transfer to this Court, the case was assigned to Judge Reggie B. Walton. Judge Walton promptly ordered the Respondents to show cause why a writ of habeas corpus should not be issued and directed Respondents to notify the Court if they intended to file a motion to dismiss prior to their response to the show cause order. Respondents ultimately filed a motion to dismiss, the Petitioner filed an opposition, and Respondents filed a reply. Petitioner and Respondents also filed supplemental briefs in response to an order issued by Judge Walton seeking the parties' positions regarding whether the Commander of the United States Southern Command should be considered the proper respondent in this action and, if so, whether proper jurisdiction or venue would be in the Southern District of Florida, where the headquarters of the Commander are located.

In addition to their motion to dismiss, Respondents filed a motion seeking coordination of the numerous cases filed in this Court by Guantanamo Bay detainees. By order dated August 17, 2004, the Calendar and Case Management Committee designated this Judge to coordinate and manage all proceedings in these matters and to the extent necessary rule on common procedural and substantive issues. On September 14, 2004, the Executive Session of the United States District Court for the District of Columbia issued its resolution affirming that this Judge will continue to coordinate and manage proceedings in all Guantanamo Bay cases pursuant to the August 17, 2004 order. In accordance with the resolution, Judge Walton issued an order on September 17, 2004 referring this case to this Judge to coordinate and manage the proceedings.

II. Discussion

Respondents raise four primary issues in seeking dismissal of the petition filed in this case. First, Respondents assert that "[a]s a threshold matter, there is a substantial question as to whether this Court has habeas jurisdiction over Secretary Rumsfeld, the only proper respondent named in the petition." Respondents' Motion to Dismiss or for Judgment as a Matter of Law and Memorandum of Points and Authorities in Support Thereof (hereinafter "Motion to Dismiss") at 5. Second, Respondents argue that "[a]s an alien detained by the military outside the sovereign territory of the United States and lacking a sufficient connection to this country, petitioner-detainee has no cognizable constitutional rights." Motion to Dismiss at 7-8. Third, Respondents claim that even if the Petitioner could invoke the United States Constitution, Respondents have not violated any constitutional rights as a matter of law. Fourth, Respondents assert that the Petitioner cannot state a claim under the Third Geneva Convention.

In furtherance of the efficient administration of this case and all other Guantanamo detainee cases that are currently filed or may be filed in the future, this Court has decided to sever and give priority to the threshold issue of whether the United States District Court for the District of Columbia is the proper forum for the resolution of the detainee's petition. This decision is in accordance with the Respondents' suggestion that questions regarding who is the proper respondent and where is the appropriate forum are common to all of the Guantanamo detainee cases and may be more appropriately resolved in a coordinated judicial effort. Motion to Dismiss at 7 n. 6. The more complex issues arising under the U.S....