Ahmed Belbacha v. George W. Bush, President of the United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2007 Decided March 14, 2008
No. 07-5258
AHMED BELBACHA,
APPELLANT
v.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv02349)
David H. Remes argued the cause for appellant. With him
on the briefs was Zachary Katznelson. James W. Beane, Jr.
entered an appearance.
Catherine Y. Hancock, Attorney, U.S. Department of
Justice, argued the cause for appellees. On the brief were Peter
D. Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S.
Attorney, and Douglas N. Letter, Robert M. Loeb, and Lowell V.
Sturgill, Jr., Attorneys, U.S. Department of Justice. Jonathan
F. Cohn, Deputy Assistant Attorney General, and R. Craig
Lawrence, Assistant U.S. Attorney, entered appearances.
Before: GINSBURG, RANDOLPH, and GRIFFITH, Circuit
Judges.

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Opinion for the Court filed by Circuit Judge GINSBURG.
Dissenting opinion filed by Circuit Judge RANDOLPH.
GINSBURG, Circuit Judge: In 2005 Ahmed Belbacha, an
Algerian national, petitioned the district court for a writ of
habeas corpus in order to challenge his detention at Guantánamo
Bay, Cuba. In July 2007, with his petition still pending, he
sought interim relief barring his transfer to Algeria on the
ground that he is likely to be tortured by the government of
Algeria and by an extremist organization that has threatened him
in the past. The district court declined preliminarily to bar
Belbacha’s transfer on the ground it lacked the power so to do,
Belbacha v. Bush, No. 05-2349 (July 27, 2007), citing the
Military Commissions Act of 2006 (MCA), Pub. L. No. 109-
366, 120 Stat. 2600, and our decision in Boumediene v. Bush,
476 F.3d 981 (2007), cert. granted, 127 S. Ct. 3078 (June 29,
2007), in which we upheld the constitutionality of the MCA
provision removing the courts’ jurisdiction over detainees’
habeas petitions.
Belbacha noticed an appeal and simultaneously asked this
court to bar his transfer pending its resolution. A motions panel
denied Belbacha’s request for a stay but ordered the case heard
on an expedited basis. Belbacha, No. 07-5258 (Aug. 2, 2007).
After hearing oral argument, this panel temporarily enjoined his
transfer in order to preserve our jurisdiction over the appeal. We
now remand this matter to the district court for further proceed-
ings.
I. Appellate Jurisdiction
We have jurisdiction to entertain Belbacha’s interlocutory
appeal. Although the district court characterized the relief he
seeks as a “temporary restraining order,” that court’s order

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The DTA deprived the courts of jurisdiction over actions by *
detainees at Guantánamo other than actions brought pursuant to the
DTA itself, see DTA § 1005(e)(1), 28 U.S.C. § 2241(e) (2005), but the
Supreme Court interpreted that provision as being inapplicable to
dismissing his motion “effectively foreclose[s]” Belbacha “from
pursuing further interlocutory relief in the form of a preliminary
injunction,” and is therefore “tantamount to denial of a prelimi-
nary injunction,” appealable under 28 U.S.C. § 1292(a)(1). See
Levesque v. Maine, 587 F.2d 78, 80 (1st Cir. 1978). Moreover,
because Belbacha sought a stay of his transfer pending the
Supreme Court’s decision in Boumediene and it was clear the
Court would take more than 20 days to decide that case,
preserving the status quo required a preliminary injunction
rather than a temporary restraining order. See FED. R. CIV. P.
65(b)(2) (imposing time limitation upon a temporary restraining
order). We review de novo the legal question whether the
district court has the authority to enjoin Belbacha’s transfer.
II. Background
Belbacha filed a petition for a writ of habeas corpus in the
district court in 2005. In 2006 the Congress passed the Military
Commissions Act, § 7(a)(1) of which, 28 U.S.C. § 2241(e)(1),
provides the courts shall not have jurisdiction over any “appli-
cation for a writ of habeas corpus filed by or on behalf of an
alien detained by the United States who has been determined by
the United States to have been properly detained as an enemy
combatant or is awaiting such determination,” and § 7(a)(2) of
which, 28 U.S.C. § 2241(e)(2), provides the courts shall not
have jurisdiction over “any other action ... relating to any aspect
of the detention, transfer, treatment, trial, or conditions of
confinement of” such an alien, “[e]xcept as provided in”
§ 1005(e) of the Detainee Treatment Act (DTA), Pub. L. No.
109-148, 119 Stat. 2680 (2005), 10 U.S.C. § 801 note.*

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petitions, such as Belbacha’s, that were pending when the DTA was
enacted. See Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2762-69 (2006).
In Boumediene we held that § 7(a)(1) of the MCA does not
violate the Suspension Clause of the Constitution, U.S. CONST.
art. I, § 9, cl. 2, on the ground that the constitutional guarantee
of habeas corpus does not apply to a foreign national without
presence or property in the sovereign territory of the United
States. 476 F.3d 981. The Supreme Court initially denied
Boumediene’s petition for a writ of certiorari, 127 S. Ct. 1478
(Apr. 2, 2007), but upon rehearing granted the petition. 127 S.
Ct. 3078 (June 29, 2007).
III. Jurisdiction of the District Court
If a case presents a “substantial” jurisdictional question,
then under the All Writs Act, 28 U.S.C. § 1651, a district court
may act to preserve its jurisdiction while it determines whether
it has jurisdiction. United States v. United Mine Workers, 330
U.S. 258, 293 (1947); see also Bell v. Hood, 327 U.S. 678
(1946); cf. Omar v. Harvey, 479 F.3d 1, 11-14 (D.C. Cir. 2007)
(court may temporarily enjoin transfer in order to preserve
jurisdiction), cert. granted on a different question sub nom.,
Geren v. Omar, No. 07-394 (Dec. 7, 2007) (citing
Ntakirutimana v. Reno, 184 F.3d 419, 423 n.7 (5th Cir. 1999)
(stay of extradition pending appeal); Then v. Melendez, 92 F.3d
851, 853 n.1 (9th Cir. 1996) (same)). Accordingly, absent a bar
to its remedial powers, the court’s authority pursuant to the All
Writs Act to grant Belbacha’s motion for interim relief depends
upon whether Belbacha’s claims sound in habeas corpus and, if
so, whether our decision in Boumediene renders insubstantial his
argument that the district court has jurisdiction. Cf. Bell, 327
U.S. 678 (jurisdiction depends upon colorable claim); see also
Adams v. McCann, 317 U.S. 269, 273 (1942) (All Writs Act
grants power to issue “all auxiliary writs” as “may be necessary

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Belbacha apparently fled Algeria in 2000, deserting from the *
Algerian army, to seek asylum in the United Kingdom.
for the exercise of a jurisdiction already existing”) (quoting
Whitney v. Dick, 202 U.S. 132, 136-37 (1906)). The MCA, of
course, leaves intact the presumptive jurisdiction of the federal
courts to inquire into the constitutionality of a jurisdiction-
stripping statute.
We conclude that Belbacha’s petition for a writ of habeas
corpus is colorable. Belbacha does not challenge only his
transfer to a country that might torture him; he contests also the
basis for his detention as an “enemy combatant.” Should the
Supreme Court hold in Boumediene that a detainee at
Guantánamo Bay may petition for a writ of habeas corpus to
challenge his detention, and should the district court conclude
that Belbacha’s detention is unlawful, then the Executive might
be without authority to transfer him to Algeria. See Omar, 479*
F.3d at 10 (holding writ of habeas corpus may be used to
challenge transfer of U.S. citizen held in Iraq to custody of Iraqi
court for trial); Benson v. McMahon, 127 U.S. 457, 462 (1888)
(extradition); INS v. St. Cyr, 533 U.S. 289 (2001) (deportation);
see also Wang v. Ashcroft, 320 F.3d 130, 141 (2d Cir. 2003)
(writ of habeas corpus used to challenge deportation in violation
of Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment art. 3, Dec. 10, 1984, 1465
U.N.T.S. 85); but cf. Mironescu v. Costner, 480 F.3d 664 (4th
Cir. 2007) (Section 2242 of the Foreign Affairs Reform and
Restructuring Act of 1998, Pub. L. No. 105-277, 112 Stat. 2681,
8 U.S.C. § 1231 note, renders Convention Against Torture
judicially cognizable only in the context of removal by immigra-
tion authorities). We need not and do not address the Govern-
ment’s argument that, irrespective of the Supreme Court’s
holding in Boumediene, § 7(a) of the MCA constitutionally bars
Belbacha’s underlying claims for relief; the district court has the

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authority to grant Belbacha preliminary relief because the
Suspension Clause colorably protects those claims and, as we
explain below, because § 7(a) does not displace its remedial
powers.
Our holding in Boumediene does not make Belbacha’s
argument for the jurisdiction of the district court less than
colorable. See Steel Co. v. Citizens for a Better Env’t, 523 U.S.
83, 89 (1998), in which the Court made clear that foreclosure by
a prior decision of the Supreme Court renders a jurisdictional
question insubstantial but said nothing of foreclosure by a
decision of a court of appeals; 13B CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE
AND PROCEDURE § 3564 (2d ed. 2007) (same). Following the
grant of certiorari in Boumediene, this court stayed or recalled
its mandate in many cases raising the same issues as that case,
including some in which the Government proposed to transfer
the detainee, and held those cases in abeyance pending the
decision of the Supreme Court. E.g., Paracha v. Bush, No. 05-
5194; Kiyemba v. Bush, No. 05-5487; Al Ginco v. Bush, No.
06-5191; Zalita v. Bush, No. 07-5129; see also Abdah v. Bush,
No. 05-5224 (Aug. 9, 2007) (in appeal from grant of order
requiring advance notice of transfer, holding in abeyance
Government’s motion to dismiss habeas petitions in light of
grant of certiorari in Boumediene). The district court also has
held in abeyance the Government’s motions to dismiss detain-
ees’ petitions for habeas corpus, and stayed the underlying
cases. See, e.g., Hatim v. Bush, No. 05-cv-01429 (RMU) (Oct.
5, 2007); Taher v. Bush, No. 06-cv-01684 (GK) (Sept. 13,
2007); Mousovi v. Bush, No. 05-cv-01124 (RMC) (Sept. 7,
2007); Razakah v. Bush, No. 05-cv-02370 (EGS) (Aug. 17,
2007); Al-Mohammed v. Bush, No. 05-cv-00247 (HHK) (Aug.
7, 2007); Khalid v. Bush, No. 04-cv-01142 (RJL) (Aug. 5,
2007); Faraj v. Bush, No. 05-cv-01490 (PLF) (July 27, 2007);
Al Maqaleh v. Gates, No. 06-cv-01669 (JDB) (July 18, 2007);

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Ameziane v. Bush, No. 05-cv-00392 (ESH) (July 5, 2007);
Zadran v. Bush, No. 05-cv-02367 (RWR) (July 2, 2007).
Neither this court nor the district court could have held these
cases in abeyance unless we thought they presented a substantial
jurisdictional question. See New Mexico Navajo Ranchers Ass’n
v. ICC, 850 F.2d 729, 731-32 (D.C. Cir. 1988) (“Our decision to
[hold the case] in abeyance seems necessarily to have rested on
an assumption that this court secured jurisdiction”); see also
FED. R. CIV. P. 12(h)(3) (“If the court determines at any time
that it lacks subject-matter jurisdiction, the court must dismiss
the action”).
A decision of this court is binding upon a later panel and
upon the district court. We hold, nonetheless, that when the
Supreme Court grants certiorari to review this court’s determina-
tion that the district court lacks jurisdiction, a court can,
pursuant to the All Writs Act, 28 U.S.C. § 1651, and during the
pendency of the Supreme Court’s review, act to preserve the
status quo in other cases raising the same jurisdictional issue if
a party satisfies the criteria for issuing a preliminary injunction.
In resisting this conclusion, the Government points out that
we declined to enjoin a detainee’s transfer in Zalita v. Bush. No.
07-5129 (Apr. 25, 2007). But that case actually cuts against the
Government’s position. As in the instant case, Zalita noticed an
appeal from the district court’s denial of his motion for a
preliminary injunction and simultaneously sought to have this
court enjoin his transfer. In April 2007, before the Supreme
Court granted certiorari in Boumediene, we denied Zalita’s
motion for an injunction and dismissed the appeal on the
authority of Boumediene; once the Supreme Court reversed
course, however, so did we. We recalled the mandate, (Oct. 11,
2007), deferred consideration of Zalita’s petition for panel
rehearing and rehearing en banc, and held the case in abeyance

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pending the Supreme Court’s decision, (Nov. 15, 2007); see also
Al Ginco, No. 06-5191 (Oct. 17, 2007) (same).
The Government argues also that we should affirm on the
basis of the order of a motions panel of this court denying
Belbacha a temporary stay pending this appeal, asserting that is
the law of the case and precludes the relief Belbacha sought in
the district court. See Belbacha, No. 07-5258 (Aug. 2, 2007)
(citing Maxwell v. Snow, 409 F.3d 354, 358 (D.C. Cir. 2005)).
An order denying preliminary relief, however, “does not
constitute the law of the case,” although it can be “persuasive.”
Berrigan v. Sigler, 499 F.2d 514, 518 (D.C. Cir. 1974). In any
event, the order also directed that this appeal be briefed and
argued on an expedited schedule. Although Boumediene, 476
F.3d 981, presumptively bars Belbacha the preliminary relief he
seeks, the motions panel obviously recognized that Belbacha
might be able to raise a substantial question of jurisdiction and
a colorable claim after full briefing and oral argument.
IV. Remedial Authority
The district court held, and the Government argues, that in
light of § 7(a)(2) of the MCA, the federal courts are without
power to entertain Belbacha’s motion seeking temporarily to
enjoin his transfer from Guantánamo to Algeria. Section 7(a)(2)
strips the courts of their “jurisdiction to hear or consider any
other action ... relating to any aspect of the ... transfer” of a
detainee. It does not displace their remedial authority, pursuant
to the All Writs Act, to issue an “auxiliary” writ “in aid” of a
“jurisdiction already existing,” see Adams, 317 U.S. at 273, here
the jurisdiction to determine whether § 7(a) is constitutional.
See United Mine Workers, 330 U.S. at 293; see also Clinton v.
Goldsmith, 526 U.S. 529, 534-35 (1999) (All Writs Act empow-
ers court to issue writs “‘in aid of’ its existing statutory jurisdic-
tion; the Act does not enlarge that jurisdiction”). Precedents of

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For an example of a statute that clearly repealed both the *
jurisdiction and the remedial powers of the courts, see the Emergency
Price Control Act of January 30, 1942, which deprived the courts of
“jurisdiction or power to consider the validity of any [covered]
regulation, order, or price schedule, or to stay, restrain, enjoin, or set
aside, in whole or in part, any provision of this Act authorizing the
issuance of such regulations or orders, or making effective any such
price schedule, or any provision of any such regulation, order, or price
schedule, or to restrain or enjoin the enforcement of any such
provision.” Pub. L. No. 77-421, 56 Stat. 23, § 204(d) (emphases
added). The Supreme Court sustained the statute, including the stay
provision, against a constitutional challenge in Yakus v. United States,
321 U.S. 414 (1944).
the Supreme Court compel the conclusion that the federal
courts’ remedial powers are intact. Califano v. Yamasaki, 442
U.S. 682, 705 (1979) (“Absent the clearest command to the
contrary from Congress, federal courts retain their equitable
power to issue injunctions in suits over which they have jurisdic-
tion”); FTC v. Dean Foods Co., 384 U.S. 597, 608 (1966) (“In
the absence of explicit direction from Congress,” court retains
authority pursuant to All Writs Act to preserve status quo when
“necessary to protect its own jurisdiction”); Scripps-Howard
Radio v. FCC, 316 U.S. 4, 11 (1942) (unless Congress “clearly”
evinces a contrary intent, court is presumed to have power to
maintain status quo in order to preserve jurisdiction). Other-*
wise, Belbacha’s transfer would make it impossible for the
district court to entertain his claim to relief that the Constitution
might guarantee. Cf. Webster v. Doe, 486 U.S. 592, 603 (1988)
(declining to read statute to deprive court of jurisdiction over
“colorable constitutional claim”).
Our orders in Rahman v. Bush, No. 07-1204 (June 19,
2007), and Khalif v. Gates, No. 07-1215 (June 22, 2007), which
issued prior to the grant of certiorari in Boumediene, and in
which we declined to maintain the status quo in order to

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Notwithstanding the Government’s argument that the MCA *
deprives all federal courts of their remedial authority to enjoin the
transfer of a detainee from Guantánamo Bay, our dissenting colleague
suggests that we could and should “issue a stay under the All Writs
Act” pending the resolution of Boumediene. The dissent, however,
nowhere explains how this court may do so without first considering
the Government’s argument.
preserve our jurisdiction over actions brought pursuant to the
DTA, are not to the contrary. Rahman and Khalif relied upon
§ 1005(e)(2) of the DTA, subsection (D) of which extinguishes
this court’s jurisdiction under the DTA upon “the release of [an]
alien from the custody of the Department of Defense.” To read
that provision as leaving intact our authority to bar a transfer in
order to preserve our jurisdiction over an action pursuant to the
DTA, as Rahman and Khalif had argued, would have contra-
vened the intent of the Congress. Although our orders also cited
§ 7(a)(2) of the MCA, that provision serves only to make
§ 1005(e)(2) of the DTA the exclusive “action” for detainees; it
does not abridge our remedial powers. Hamlily v. Gates, No.
07-1127 (July 16, 2007), which issued after certiorari was
granted in Boumediene, cited only Rahman and Khalif, and is
inapposite for the same reasons.*
V. Preliminary Injunction
In deciding whether to issue a preliminary injunction, the
courts consider four factors: (1) whether the moving party has
a substantial likelihood of success on the merits; (2) whether the
moving party faces irreparable harm absent the preliminary
injunction; (3) whether the injunction would substantially injure
the opposing party; and (4) whether the injunction furthers the
public interest. Ellipso, Inc. v. Mann, 480 F.3d 1153, 1157
(D.C. Cir. 2007). “If the arguments for one factor are particu-
larly strong, an injunction may issue even if the arguments in

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other areas are rather weak.” CityFed Fin. Corp. v. Office of
Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).
Here the probability of Belbacha’s prevailing on the merits
of his habeas petition is far from clear but, in light of the
seriousness of the harm he claims to face, namely, torture at the
hands of a foreign state and of a terrorist organization, we
cannot as the Government urged at oral argument say
Belbacha’s motion for a preliminary injunction fails as a matter
of law. It falls to the district court in the first instance, therefore,
to balance the four factors in order to decide whether a prelimi-
nary injunction is “necessary or appropriate” in this case. 28
U.S.C. § 1651; see Serono Labs., Inc. v. Shalala, 158 F.3d 1313,
1317-18 (D.C. Cir. 1998). Accordingly this matter is remanded
to the district court for further proceedings.
So ordered.

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RANDOLPH, Circuit Judge, dissenting: Students of federal
courts will be surprised to learn that district judges have
jurisdiction to issue preliminary injunctions in cases in which
they have no jurisdiction to issue permanent injunctions. That
is the majority’s position here.
I have no quarrel with the majority’s point that the district
court had jurisdiction to determine whether § 7(a) of the Military
Commissions Act, stripping that court of jurisdiction, was
unconstitutional. But I cannot see how this bears on the
question before us. The district court has already decided that
circuit precedent compelled it to uphold the statute, as indeed it
did. It therefore makes no sense to send the case back to the
district court so that it may decide whether to issue a temporary
injunction in aid of its jurisdiction to decide something it has
already (correctly) decided.
This should have been a very simple case. Instead it has
been turned into a tangle. All we had to do was issue a stay
under the All Writs Act, 28 U.S.C. § 1651, preventing
Belbacha’s transfer to Algeria pending the Supreme Court’s
decision in Boumediene v. Bush, 476 F.3d 981 (2007), cert.
granted, 127 S. Ct. 3078 (June 29, 2007). We would do so for
the traditional reasons – because there is a substantial chance the
Court’s decision will affect Belbacha’s case and because he
would suffer irreparable harm. See, e.g., Va. Petroleum Jobbers
Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir.
1958); W. India Fruit & S.S. Co. v. Seatrain Lines, Inc., 170
F.2d 775 (2d Cir. 1948), cited with approval in FTC v. Dean
Foods Co., 384 U.S. 597, 604 (1966). I thus believe we should
have simply continued the stay this court issued on December
31, 2007.

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