Philip Lawrence Sundel v. United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 18, 2020 Decided January 26, 2021
No. 19-1234
PHILIP LAWRENCE SUNDEL,
PETITIONER
v.
UNITED STATES OF AMERICA,
RESPONDENT
On Petition for Review of a Final Order of
the U.S. Court of Military Commission Review
Philip Sundel, pro se, argued the cause and filed the briefs
for petitioner.
Jeffrey M. Smith, Attorney, U.S. Department of Justice,
argued the cause and filed the brief for respondent. Joseph F.
Palmer and Danielle S. Tarin, Attorneys, entered appearances.
Before: HENDERSON and WALKER, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: In this case, a defense attorney
named Philip Sundel (with no client) petitioned a court (with
no jurisdiction) to reverse a procedural ruling (excluding the

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public from a classified hearing) in an appeal filed by other
attorneys who (like Sundel) have no client. Welcome to
Guantanamo Bay.
I
Ibrahim al Qosi was and remains an Islamist terrorist.
Ten years ago, he pled guilty to two counts of terrorism-related
charges. As part of his plea agreement, al Qosi waived his
right to appeal. In exchange, the government released him to
his native Sudan after just two years’ imprisonment. Some
time later, al Qosi resurfaced as a leader of al Qaeda in the
Arabian Peninsula, encouraging lone wolf terrorist attacks
against the United States. In the years since then — indeed, in
the eight years since his release from custody — al Qosi has
had no contact with his former lawyers at a division of the
Department of Defense called the Military Commissions
Defense Organization. But al Qosi’s former lawyers have
nonetheless continued to challenge his conviction.
Enter Philip Sundel, another lawyer at the Military
Commissions Defense Organization. For reasons he didn’t
offer when asked by this Court, he wanted to watch a recent
hearing on al Qosi, even though he has never been al Qosi’s
lawyer.1
Because most proceedings for Guantanamo Bay detainees
are open to the public, Sundel’s desire to watch the hearing
would not normally have been a problem. But this particular
hearing concerned classified information. So the military
judge closed it.
1 See generally United States v. DuBay, 37 C.M.R. 411 (C.M.A.
1967) (per curiam) (establishing a hearing to determine collateral
issues that require findings of fact and conclusions of law).

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Sundel was undeterred. He moved the court to permit
him to attend. The military judge denied his motion.
Sundel then asked the Court of Military Commission
Review to allow him to read an unredacted transcript of the
closed hearing. He lost again.
Now Sundel asks this Court for relief.
II
At oral argument, the Court raised concerns about
Sundel’s prudential standing — and the possible lack thereof.
Prudential standing encompasses “at least three broad
principles: the general prohibition on a litigant’s raising
another person’s legal rights, the rule barring adjudication of
generalized grievances more appropriately addressed in the
representative branches, and the requirement that a plaintiff’s
complaint fall within the zone of interests protected by the law
invoked.” Lexmark International, Inc. v. Static Control
Components, Inc., 572 U.S. 118, 126 (2014) (cleaned up).
Here, Sundel does not invoke this cause of action based on
his representation of detainees at Guantanamo Bay. That part
of his job is, for these purposes, irrelevant. Instead, he is suing
as a member of the public, standing in the same shoes as any
other citizen could.
But Sundel, to state the obvious, is no ordinary citizen.
He works for the Department of Defense. That is the same
agency that runs the military tribunals at Guantanamo Bay.
And agency employees don’t usually drag their agency into
federal court after losing an internal policy debate. After all,
it would be odd for a lawyer at the FCC to sue the FCC over

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the FCC’s adoption of a procedural rule in a recent FCC
adjudication — and to do so as a member of the public. So
too is it odd that Sundel, a lawyer within the Department of
Defense, is suing the Department, as a member of the public,
over an internal policy that closed a classified hearing.
To be clear, government lawyers often have a right and a
duty to argue against proposed policies within the agency’s
walls. And when they think a policy is illegal, it is their job to
say so. See, e.g., Steven A. Steinbach, The Two Lives of
Laurence Silberman: Political Service and Judging, available
at https://dcchs.org/wp-content/uploads/2019/06/Silberman-
oral-history-summary-revised.pdf (Undersecretary of Labor
Laurence Silberman submitted a resignation letter “after a run-
in with Chuck Colson, who was improperly ‘trying to fix’ DOL
enforcement actions”). But we are not saying that, having lost
the internal debate, a government lawyer can, as a member of
the public, litigate the debate’s outcome in federal court.
Nor are we opining on the constitutionality of that debate’s
outcome. It is an open question whether the public has a First
Amendment right to attend hearings related to detainees at
Guantanamo Bay. For now, we simply note that allowing a
government lawyer to litigate that question as a member of the
public would invite ill-advised litigation in other contexts.
In short, Sundel may or may not have prudential standing.2
But we need not address that precise issue today because there
is a clearer reason we must dismiss Sundel’s case: We lack
subject matter jurisdiction.
2 Our Circuit recognizes prudential standing as jurisdictional,
Association of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 674
(D.C. Cir. 2013) (per curiam), but some have called that into question
in light of Supreme Court precedent, see id. at 677 (Silberman, J.,
concurring) (collecting cases).

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III
The Constitution gives Congress the power to “ordain and
establish” “inferior Courts.” U.S. CONST. art. III, § 1. And if
Congress can establish inferior courts, Congress can also set
the boundaries for those courts’ jurisdiction. E.g., Moms
Against Mercury v. FDA, 483 F.3d 824, 827 (D.C. Cir. 2007)
(quoting Cutler v. Hayes, 818 F.2d 879, 887 n.61 (D.C. Cir.
1987)). As to appeals taken from the military commission
system, Congress vested this Court with jurisdiction only over
“the validity of a final judgment rendered by a military
commission (as approved by the convening authority and,
where applicable, as affirmed or set aside as incorrect in law by
the United States Court of Military Commission Review).” 10
U.S.C. § 950g(a); see Khadr v. United States, 529 F.3d 1112,
1117 (D.C. Cir. 2008).
Here, Sundel ultimately appeals the military judge’s
decision to close the hearing. We can review that challenge
only if it is, among other things, a “final judgment.” In the
military commission system, a final judgment is akin to
a conviction. 3 Yet Sundel appeals not a conviction — a
judgment — but rather a decision. Although other
jurisdictional statutes may allow an aggrieved party to appeal
decisions, see, e.g., 28 U.S.C. § 1291, in the military
commission context, Congress took a narrower approach and
allowed appeals only from judgments. Because Sundel does
not appeal a judgment, we lack jurisdiction.
3 “The MCA provides an appeal as of right to our [C]ourt. The
question in this case is when that argument to us may occur. The
district court decided that Article III review should occur at the time
that Congress contemplated: after any conviction and accompanying
appeal in the military system.” In re Al-Nashiri, 835 F.3d 110, 118,
122 (D.C. Cir. 2016) (emphasis added).

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Sundel counters that the collateral-order doctrine gives this
Court jurisdiction. The collateral-order doctrine “permits
appeals not only from a final decision by which a district court
disassociates itself from a case, but also from a small category
of decisions that, although they do not end the litigation, must
nonetheless be considered ‘final.’” Swint v. Chambers County
Commission, 514 U.S. 35, 42 (1995) (cleaned up). The
doctrine is not an independent basis for jurisdiction but rather
a “practical construction” of the word “final” in 28 U.S.C.
§ 1291 — a practical construction that Sundel argues should
apply here. See Swint, 514 U.S. at 41–42 (cleaned up). Even
if we adopted Sundel’s construction, we would still lack
jurisdiction. “Final” is an adjective, and “[a]djectives modify
nouns — they pick out a subset of a category that possesses a
certain quality.” Cf. Weyerhaeuser Co. v. U.S. Fish & Wildlife
Service, 139 S. Ct. 361, 368 (2018). Thus, “[a]ccording to the
ordinary understanding of how adjectives work,” id., a “final
judgment” would still need to be a “judgment.” So no matter
how broadly or narrowly we construe the word “final” — no
matter how many practical considerations we take into account
— we would still, at the end of the day, lack a judgment. And
because we do not have a judgment, we do not have
jurisdiction.
* * *
We dismiss Sundel’s petition for lack of subject matter
jurisdiction.

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