Obaydullah v. Obama

• Decision Date: 03 August 2012
• Docket Number: No. 11–5123.,11–5123.
• Citation: 688 F.3d 784,83 Fed.R.Serv.3d 313
• Parties: OBAYDULLAH, Detainee, Guantanamo Bay and Sami Al Hajj, as next friend of Obaydullah, Appellants v. Barack OBAMA, President of the United States and Leon E. Panetta, Secretary of Defense of the United States of America, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

688 F.3d 784

83 Fed.R.Serv.3d 313

OBAYDULLAH, Detainee, Guantanamo Bay and Sami Al Hajj, as next friend of Obaydullah, Appellants

v.Barack OBAMA, President of the United States and Leon E. Panetta, Secretary of Defense of the United States of America, Appellees.

No. 11–5123.

United States Court of Appeals, District of Columbia Circuit.

Argued April 24, 2012.

Decided Aug. 3, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cv–01173).

Lisa R. Jaskol argued the cause for appellant Obaydullah. With her on the briefs were Ranjana Natarajan, Anne Richardson, Dan Stormer, Cindy Panuco, Jon B. Eisenberg, and Pardiss Kebriaei.

Benjamin M. Shultz, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Tony West, Assistant Attorney General, and Robert M. Loeb, Attorney.

Before: SENTELLE, Chief Judge, and HENDERSON and GARLAND, Circuit Judges.

Opinion for the court filed PER CURIAM.

Dissenting opinion filed by Chief Judge SENTELLE.

PER CURIAM: ^*

Obaydullah, a detainee at the United States Naval Station at Guantanamo Bay, Cuba, appeals from the district court's denial of his petition for a writ of habeas corpus.¹ For the reasons set forth below, we affirm the judgment of the district court.

I

Obaydullah is an Afghan citizen who is approximately 29 years old. He grew up in the village of Milani in Afghanistan's Khost province, where he was living at the time of his capture. On July 21, 2002, U.S. military forces conducted a raid at Obaydullah's home based on certain intelligence reports. Obaydullah v. Obama, 774 F.Supp.2d 34, 35 (D.D.C.2011).² During the raid of the compound in which Obaydullah was living, U.S. forces discovered a notebook in Obaydullah's pocket that contained diagrams of explosives, and also found 23 anti-tank mines buried nearby outside. Id. at 36;see Dep't of Def. Criminal Investigation Task Force Report (CITF Report) (J.A. 713). According to a staff sergeant who was present during the raid and submitted a sworn declaration, Obaydullah initially said that the diagrams were of wiring for a generator and that he was keeping the mines for someone named “Karim.” Staff Sergeant Decl. ¶ 5 (J.A. 2495); see CITF Report (J.A. 713). The team also found a tarp-covered car on the property that contained Taliban propaganda and had dried blood on the back seat. CITF Report (J.A. 713); Staff Sergeant Decl. ¶ 5 (J.A. 2495).³ Obaydullah was taken into custody and eventually transferred to the U.S. Naval Station at Guantanamo Bay.⁴

On July 7, 2008, Obaydullah filed a petition for a writ of habeas corpus. In November 2008, however, the government filed charges against Obaydullah for the purpose of initiating a prosecution before a military commission. As a result, the parties agreed to stay the habeas proceedings. Then, following President Obama's suspension of military commissions proceedings in January 2009, Obaydullah moved to vacate the stay. The district court denied his motion, but this court reversed. See Obaydullah v. Obama, 609 F.3d 444 (D.C.Cir.2010). ⁵ Thereafter, habeas proceedings resumed before the district court. On November 30, 2010, the court entered judgment denying Obaydullah's habeas petition, concluding that the government had established “that it is more likely than not that [Obaydullah] was in fact a member of an al Qaeda bomb cell, and is therefore detainable.” Obaydullah, 774 F.Supp.2d at 36. Obaydullah filed a motion for reconsideration, which was also denied. He then filed his notice of appeal.

Obaydullah contends that he was captured in “a case of mistaken identity,” Obaydullah Br. 1, and he presents alternative explanations for the notebook and the mines. In that connection, he argues that the district court erred in relying on government intelligence reports that linked him to al Qaeda and gave rise to the raid during which he was captured. Obaydullah also contends that the court erred in denying his requests for discovery. We examine Obaydullah's merits contentions in Part III and his discovery contentions in Part IV. We begin, however, with a question about our jurisdiction.

II

The district court denied Obaydullah's habeas petition on November 30, 2010. Twenty-two days later, Obaydullah requested a two-day extension to file a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e). Rule 59(e) provides that such motions must be filed within 28 days after entry of a final judgment, and Rule 6(b)(2) further states that this deadline cannot be extended. Fed.R.Civ.P. 59(e); id. 6(b)(2). Nonetheless, the government did not oppose the request, and the court granted it. Obaydullah filed his Rule 59(e) motion on December 30, 2010 (that is, 30 days after the judgment), and the court ultimately denied that motion on March 24, 2011. On May 17, 2011, Obaydullah filed his notice of appeal.

28 U.S.C. § 2107(b) states that an appellate court has jurisdiction of a case only if a notice of appeal is filed within 60 days of the entry of a judgment (where the government is a party to the case). But under Federal Rule of Appellate Procedure 4(a)(4)(A), “[i]f a party timely files” certain subsequent motions in the district court, “the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion.” Fed. R.App. P. (FRAP) 4(a)(4)(A). A Rule 59 motion falls within this category, FRAP 4(a)(4)(A)(iv), and Obaydullah filed his notice of appeal within 60 days after the district court denied his Rule 59(e) motion.⁶ The potential problem is that, arguably, Obaydullah's Rule 59(e) filing was not “timely” within the meaning of FRAP 4(a)(4)(A) because it came more than 28 days after entry of the court's judgment. If his Rule 59(e) motion was not timely, then it failed to trigger FRAP 4(a)(4)(A)'s tolling provision. And without tolling, Obaydullah's appeal would be too late (having been filed more than 60 days after the district court entered judgment on the denial of the habeas petition), and we would thus lack jurisdiction to hear his case.

There is no doubt that, if Obaydullah had simply exceeded the deadline prescribed in 28 U.S.C. § 2107(b), we would have no jurisdiction. See Bowles v. Russell, 551 U.S. 205, 206, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). The question is whether his Rule 59(e) motion triggered FRAP 4(a)(4)(A)'s tolling provision, notwithstanding that it may not have been “timely” under the latter rule. Obaydullah contends that FRAP 4(a)(4)(A)'s timeliness requirement is a “claim-processing rule” subject to waiver. The government agrees that it can be construed as such and, “to the extent it can, [it] waives any objection to the fact that [Obaydullah's] reconsideration motion was not timely filed.” U.S. Br. 3. But if FRAP 4(a)(4)(A)'s timeliness provision is in fact a jurisdictional rather than a claim-processing rule, then it pertains directly to our “ ‘power to hear [the] case’ ” and “ ‘can never be forfeited or waived.’ ” Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 130 S.Ct. 584, 596, 175 L.Ed.2d 428 (2009) (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)). “In contrast, a ‘claim-processing rule, ... even if unalterable on a party's application,’ does not reduce the adjudicatory domain of a tribunal” and may be forfeited. Id. (quoting Kontrick v. Ryan, 540 U.S. 443, 456, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)). Because we “have an independent obligation to ensure that [we] do not exceed the scope of [our] jurisdiction,” we must “decide jurisdictional questions” even when the parties “elect not to press” them. Henderson ex rel. Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197,1202, 179 L.Ed.2d 159 (2011).

As a general matter, “only timing rules that have a statutory basis are jurisdictional.” Youkelsone v. FDIC, 660 F.3d 473, 475 (D.C.Cir.2011). The Supreme Court made this dividing line explicit when, in Bowles, it found that a provision of FRAP 4(a)(6) allowing a district court to reopen a party's time for filing a notice of appeal “for a period of 14 days” is an absolute jurisdictional requirement because it is expressly codified in 28 U.S.C. § 2107(c). See Bowles, 551 U.S. at 213, 127 S.Ct. 2360 (“Because Congress specificallylimited the amount of time by which district courts can extend the notice-of-appeal period in § 2107(c), that limitation is [jurisdictional].”). Here, the general 60–day deadline for filing an appeal has an obvious statutory basis (in § 2107(b)), but the provisions in FRAP 4(a)(4)(A) allowing for modification or tolling of that deadline do not have such a basis.

Because FRAP 4(a) implements § 2107, there is at least a theoretical argument that it, too, must be jurisdictional. But two cases from this circuit have specifically examined provisions of FRAP 4(a) and have concluded that, because those provisions themselves lack statutory analogues, they are claim-processing rules subject to waiver or forfeiture. Those cases directly control our analysis.

First, in Wilburn v. Robinson, 480 F.3d 1140 (D.C.Cir.2007), we found that FRAP (4)(a)(4)(A)( vi ), which tolls the deadline when a party files a Rule 60 motion, is a claim-processing rule. That provision tolled the deadline where such a motion was filed within ten days after judgment (the period is now 28 days), and the appellant had filed his motion one day late. Because the other party had failed to object, the court was required to decide whether the rule was jurisdictional. We held that it was not. Rather, we concluded that “[t]he tolling language of Rule 4(a)(4)(A)(vi) fits the [Supreme] Court's description of a claim-processing rule” by “establish[ing] a deadline ... within which a party must file [the motion] in order to toll the time limit for filing a notice of appeal” and by affording an affirmative defense to untimely appeals. Id. at 1145 ( citing Eberhart...