*1 Moreover, practices. represen- Marriott’s
tations do not implicate Restate-
ment factors.
Charness that no argues constitutional
principles per- would be offended were he against
mitted to invoke the CPPA Mar- so,
riott. That but it answer question: the more fundamental Does him on protect CPPA these facts? As said,
we have not. We therefore
affirm the court’s district of sum-
mary Marriott. judgment for
IV.
We reverse entered
against plaintiffs Shaw Mendelson be- standing
cause lack to sue in federal
court. those We remand claims to the
district court for proceedings further con-
sistent with opinion. We affirm the
judgment in favor of Marriott with respect
to the remaining plaintiffs.
So ordered. KIYEMBA, Friend,
Jamal Next al., Appellees
et OBAMA,
Barack President of States, al., et
Appellants. 08-5424, 08-5425, 08-5426,
Nos. 08-5429.
United States Court of Appeals,
District of Circuit. Columbia April
Argued Sharon Swingle, Attorney, Depart- May Justice, Decided ment of argued the cause for ap-
pellants. With her on the motion for rein- statement and the appellees’ govern motion to and for remand were Bondy Loeb, Thomas M. and Robert M. Attorneys. *2 posture cause for The of the case now is not mate ap- the argued Willett
Sabin govern rially than was when the case him the motion different With on pellees. February to the first us. On remand and the was before and for were Rheba Rut- government for reinstatement informed Su motion kowski, Jason S. Pin- McGaraghan, preme original peti Neil Court that one of Manning, George ney, previously Susan Baker not received an “had Tirschwell, Clarke, Dixon, A. Eric any country” J. Wells from offer Sternhell, Verne, Darren La J. Michael he before and his brother received offers Saifee, Gilson, Angela Elizabeth P. Seema from in 2010. from Switzerland Letter Vigil and Cori Crider. General, C. Kagan, Elena Solicitor to William (Feb. Suter, K. of the Clerk ROGERS, HENDERSON and Before: 2010). told the government The also RANDOLPH, Judges, and Senior Circuit Uighurs Court the five who remain Judge. Circuit Bay had received a total of two from Palau in September offers—one PER for the filed Opinion Court rejected, which and then anoth CURIAM. country, er an unnamed which judgment in the filed Opinion concurring rejected. also id. at for Re Brief Judge by Circuit ROGERS. — spondents Kiyemba —1235, -, PER CURIAM. - (2010). government As the admitted On March Court at oral argument, information —on judgment Kiyemba our
vacated Oba apparently which relied its ma, (Kiyem F.3d 1022 per opinion completely curiam —was I), case to remanded the us to ba fact, shortly accurate. In we issued before ... proceedings” “determine what further opinion February govern- our in our court or in the district court “are stating ment filed under seal material necessary and for the full and petitioners each of seventeen had re- case in disposition light prompt cently received a resettlement offer from developments,” Kiyemba v. the new Oba foreign country. The five who -, ma, have thus remain this case received (per cu offers, rejected three rather than two. riam). familiarity with We assume our original light was Our decision made opinion. develop I “new Kiyemba to all petitioners, of resettlement offers the Court were ments” identified as fol why which is we were that the confident All lows. seventeen “received government “continuing diplomatic was at- one offer of resettlement anoth at least tempts appropriate country to find an will- country,” accepted and twelve offer. er I, petitioners.” admit remaining “rejected two Id. The five such F.3d at 1029. being and are still held Guantana offers Bay.” mo agree government that no We with facts are legally dispute. relevant now compliance In with the Court’s arguments of petitioners’ None turn on held proceedings, mandate we further con- Petition- particular factual considerations. parties’ motions and heard oral sidered ers want us to remand the case to government’s argument. We now evidentiary hearing district court for an we motion to reinstate the original of the resettlement offers opinion, our as modified reinstate But developments. “appropriate.” as our here to take account of new indicated, opinion even if had tion. U.S. Const. Art. cl. 2. But reject reason to the offers suspend the statutes nothing: petitioners right have no to be into the released Unit had a right never constitutional to be addition, ed an intervening States. to this and released. Pe *3 opinion precludes of this court the sort of argue titioners also that the new statutes judicial inquiry seek; is for bills are unlawful of attainder. The statu branches, courts, political not the restrictions, tory apply which to all Guan foreign country determine whether a detainees, tanamo are not legislative pun Kiyemba for resettlement. v. ishments; they deprive petitioners noof (D.C.Cir. Obama, 509, 561 F.3d 514-16 right they already possessed. See Nixon 2009) II) (Kiyemba (discussing v. Servs., v. Adm’r Gen. 433 U.S. Geren, 674, 2207, 553 U.S. 2225- 481, 2777, (1977). 53 L.Ed.2d 26, (2008)); see also id. at We therefore reinstate the judgment J., (Kavanaugh, 516-17 concurring). our opinion, and reinstate as modified here original Our opinion 2009 held that it to take into develop- account these new was power within “the exclusive the ments. political branches to decide which aliens So Ordered. may, may not, and which aliens enter the States, and on what terms.” Ki- ROGERS, Judge, Circuit concurring in yemba 1025. At the time of judgment. our decision we had heard from the As this case returns to the court on then, Executive Legis- Branch. Since remand the Supreme petition- lative spoken. Branch has sepa- seven ers’ habeas claim has been over- rate which enactments —five of remain in events, taken longer and it is no neces- today Congress prohibited force has — sary to opine broadly as the majority as expenditure any bring funds by reinstating opinion February its Guantanamo detainee to the United States. 18, 2009. opinion That was overbroad to Supplemental Act, See Appropriations with, begin pointed my as out in separate 2009, 111-32, 14103, § Pub.L. No. concurrence, must, result, which as a also 1859, 1920; Stat. Continuing Appropria- reinstated, acknowledging certain new Resolution, 2010, 111-68, tions Pub.L. No. developments. Obama, B., § 115, 2046; Div. Stat.2023, De- 1022, 555 F.3d 1032-39 partment Homeland Security Appropri- J., (Rogers, concurring in the judgment) Act, 2010, 111-83, § ations Pub.L. No. ”). (“Kiyemba I 2142, 2177-78; 123 Stat. National Defense Uighur petitioners These sought five Authorization Act for Fiscal Year certiorari review of this 111-84, court’s reversal of § Pub.L. No. 123 Stat. district court’s of the writs of Interior, Department of the En- vironment, ground on the Agencies Appro- and Related Act, “Executive detention is indefinite and priations Pub.L. No. A, law, without 2904, 2962; § Div. authorization Stat. Con- Act, 2010, the continental United Appropriations solidated States is the Pub.L. only possible § No. effective remedy.” Kiyemba 123 Stat. U.S. -, Department of Defense Appropriations Act, 111-118, 9011, No. (quoting Pub.L. certiorari) added). say petition Stat. 3466-67. these statutes, them, which clearly apply granted vio- district court had the writs Suspension late the Clause the Constitu- and ordered release into circumstances, indefinite the United States. when these der 14-17); at 34 see also id. al- was at Guantanamo 16-17) (counsel respondents); id. Bay Litig., In re Guantanamo ternative. 1) (line (same). Moreover, (D.D.C.2008). 33, 42-43 F.Supp.2d. acknowledge the United States’ February 2009 re- decision our Since court, identify resettle- efforts to versing the district and “in ment been “strenuous” will- several countries has identified faith.” Petitioners’ Motion for resettlement.1 receive ing to Opposition to for Remand and made short- Govern and was offer of resettlement One decision, for Reinstate- Respondents’ Cross-Motion February our ly before (“Petrs’ Reply”) Judgment States “had made although the United *4 independent determi- an did not make Bush, 723, In Boumediene country] was otherwise that [the nation 171 L.Ed.2d Tr. Apr. for resettlement.” appropriate (2008), held that “the the (lines 17-19). After our power must have the to order habeas court however, decision, the States deter- United un- an individual the conditional represent that two other mined lawfully though release need detained — reset- places “appropriate” remedy be and is not the not the exclusive tlement, Palau six other including where in every case which the appropriate one have since been reset- Uighur Notably, is the Court ob- granted.” writ (lines 24- Tr. 2010 at 6 Apr. tled.2 corpus “common-law habeas served that (line 1); Respts’ Opposition at see was, all, adaptable remedy,” above conditioned resettle- Those countries 10. judicial power to issue ha- that “when to petitioners’ “willingness go on judi- properly is invoked the corpus beas (lines 3-4). Tr. Apr. there.” adequate authority cial officer must have light to a determination rejected the offers of make have to formulate relevant law and facts and in countries resettlement relief, and issue orders has determined are independently necessary, directing an order including, if for their resettlement. See “appropriate” release.” 2271. argument prisoner’s Opposition at Oral Respts’ Geren, however, confirmed, day, the same as is On April 171 L.Ed.2d post-remand filings implied court, (2008), the distinc- emphasized not the Court petitioners do claim in this power to the habeas court’s or tion between oppression feared or other they torture China, and its writ and order release harm, issue the including return “[u]nder do so [the] in either of accepted have resettlement (quot- at 2221 See also id. by circumstances.” “appropriate” countries determined possibility Uighur is pe- at least whether there seventeen dresses 1. Twelve any pro- accepted petitioners would harm offers: "face have titioners Palau, Bermuda, Respon- posed country and two in six in resettlement.” four in Opposition Support Respondents’ dents’ of Cross-Motion for Switzerland. ("Respts’ Reply”) Judgment and for Re- Petitioners' Motion Govern Reinstatement of for Reinstatement of mand Cross-Motion at 5. includes This assurance Judgment ("Respts’ Opposition”) at Re- be and would be reset- returned China Id..; J. spondents' of Mar. 2010 to Mark Letter tled deemed to "safe.” in countries 9). Langer, Apr. Clerk of the at 2. As matter Tr. will obtain policy, the United States prior See id. tioners’ consent to resettlement. that a The United States’ determination (lines 1-2). country "appropriate” is for resettlement ad- Watkins, Pet. 7 inite and unlawful Executive parte Ex detention at C.J.)). (1830) (Marshall, Guantanamo, Kiyemba, So see S.Ct. at L.Ed. derstood, position upon States’ 1235—is theirs consent. Petitioners United —that effective, even the writ have received offers of issuing the re- the habeas court without abroad countries determined “extraordinary judicial quested order” “appropriate” States to be their United leasing petitioners result, into continental resettlement. As a hold resettlement, awaiting States while keys to their release from Guantana- original petitioners because seventeen All register mo: must do is either been transferred Guanta- consent. 2010 at or been offered 8-9). namo another no longer The habeas court thus is elsewhere, confronted with the choice between either see Tr. Opposition Respts’ releasing the continental 20-21) force, at least 2010 at dooming —has States or them to indefi- for now. nite detention at Guantanamo. The Unit- acknowledged States has it will not ed adaptability
In view of *5 “appropriate” deem for resettle- writ, claim of constitutional en- petitioners’ subject if petitioners ment would be in the continental titlement release torture, 2, 5; at see id. see also pending States J., (Rogers, F.3d at n. concur- 555 1033 3 see, abroad, e.g., Petrs’ at cannot ring judgment) (citing presently Pretermitting succeed. Against Nations Convention Torture and a court order- question whether habeas Cruel, Inhuman or Degrading Other court- petitioners’ Punishment, barriers, Treatment or to which the statutory could overcome house Martinez, is a signatory). United States note 543 see Clark cf infra allege proffer neither nor n. evidence this & (2005); at or other harm as would occasion the need id. (O’Connor, J., a concurring), for remand3 so the habeas court could S.Ct. meaningful seek—release from indef- devise a remedy.4 relief additional is, request acknowledging "biggest a remand to the issue Petitioners' you going are to be kicked back to China. predominantly district court focused on the risk,” (lines 20-21). big That’s the id. at 25 surrounding purport- fact that all of "the facts developed ed offers of resettlement abroad" Munaf, majority 4. The overreads both petition are after certiorari was filed S.Ct. at and this court's most recent record, part through not a than other Obama, opinion Kiyemba by letters submitted to the Court II”). {''Kiyemba Maj. Op. See Motion to Govern and for counsel. Remand at 1047-48. Court Munaf Motion”) ("Petrs’ at 3. Of the matters holding, stating limited its that "[u]nder cir- identify, none affect their entitlement here,” presented such cumstances as those they deny claim: Petitioners do not that re- provided relief. S.Ct. two ceived offers state, discussing at 2213. The Court did "appropriate,” the United States determined Department’s the State evaluation of the risk they challenge and do not that determination prisoner of torture and mistreatment in a any way relevant to their claim of entitle- foreign country's system, legal Ju- "[t]he ment to release into the continental United diciary second-guess suited to such is not pending During resettlement. ar- determinations,” States oral id. at 2226 add- gument spoke their ed), counsel instead of Noting that but went no further. citizenship, ownership property, desire "allege possibility there affinity, employment, Apr. prison facility,” Tr. cultural in a mistreatment whether, (lines 24-25) (line 4), open question "a more while left —22 that, they give their consent to resettled has advised were The United States interest, During argument an it is oral express petitioners to Palau, contention, disclaimed such broad see pursue prepared (line 4); that remains re- “appropriate” an (lines 20-21), id. at presumably consensual resettlement. because ceptive 10, 24; Tr. at Boumediene reaffirmed that Respts’ Opposition See 23-25). circumstances influence the nature of the remedy a habeas court meaningful should argued prior Petitioners had Boumediene, provide. at entitled to release remand Munaf, at 2220- even if in the continental United States elsewhere, they had offers of resettlement to be Petitioners’ reliance on Fifth Amend- were entitled process had no- ment due and the Geneva released here because Conven- support tions in of their claim of entitle- go. else to See Brief for Petitioners
where release in Kiyemba v. the continental United pending resettlement fails for simi- S.Ct. (2010).5 lar The fact that an offer of resettle- reasons. Petitioners seek writs of ha- corpus grounded beas in their ment in remains claims available, however, unlawful Executive means the Guan- Bay with- Naval from Guantanamo is available tanamo Station. Amended lease Corpus, for further action the Petition for Writs of Habeas filed out the need court Oct. role due habeas court. That 31. Whatever authority process might and the Geneva Conventions have the order *6 writ, play regard separate question granting from whether court with release, Munaf, authority cite no obligated process to order due is cf. 2220-21, right at or the a much less release Geneva Conventions confer in the of release continental United States continental United States. Sus- objection when an offer of abroad in an taining petitioners’ to “exile” to resettlement (Palau), Reply island” Petrs’ at is made “a distant faith remains available. imply would that their claim of con- and Boume- diene, at Suspen- entitlement under the stitutional adaptability release in the continental Court reaffirmed the sion Clause to remedy, regardless matter where the reason applies States habeas offered, underlying is is until unlawful. “appropriate” resettlement In their merits brief to the extreme case in which Executive has de- likely termined that a detainee is to be tor- petitioners stated: anyway,” but decides to transfer him tured [under Petitioners did not seek admission provide writ Id. So would relief. too They only immigration asked for laws]. II, this court declined consider prison they were from a to which release prosecutions the likelihood of and torture If is the in chains. U.S. release system grounds foreign legal der the release, way to achieve that Petitioners powers, comity separation of responsible dilemma. are not 2225-26). Munaf, (citing 514-16 S.Ct. abroad have Transfer to safe haven proposi- Neither case stands the broader welcome, and would be welcome been still play that the habeas court has no role tion if initiated from the continental challenges petitioner an Execu- whenever prefer U.S. States. Zadvydas Branch tive determination. Davis, prison. to U.S. 533 U.S. added). (2001). L.Ed.2d 653 adaptable remedy nature of the habeas the United States has “appropri- identified itself, intrinsic the writ ate” countries for current circumstances undermine their and resettlement one such remedy, claim that ac- even mains available. Petitioners’ claim of con- counting for Fifth Amendment Due stitutional entitlement to release in the and the Process Clause Geneva Conven- continental pending United States resettle- tions, requires their release into the conti- ment by abroad has thus been overtaken nental United pending events: Petitioners hold the keys release from Contrary petitioners’ suggestion, “appropriate” country.6 argued United States has not then-
rejection resettlement offers means permanently right waived their
seek habeas relief. Petrs’ (lines 10-12), 5-6). 13-16), 26 That a habeas provide
court declines to
a preferred reme-
dy
meaningful remedy
render a
NATTAH,
Abdulwahab
Lead Plaintiff
unavailable,
forever
for circumstances can
Employees,
Titan
Class of
Boumediene,
change, see
- (2010). Petitioners face no May Decided by the United States to their release from Guantanamo for Indeed, the United States has position
taken the that “[petitioners are
indisputably entitled to release from mili
tary detention under the Authorization for Force,” of Military §
Use 50 U.S.C.
note. Respts’ Opposition Further, at 17. therefore, It unnecessary, that, to decide (providing Stat. ex- Congress unconstitutionally suspend- cept prosecution during and detention le- ed the writ or gal proceedings, enacted a bill of attainder when "[n]one of the funds made it barred use appropriated funds to available in this or Act other be used or transfer detainees at Guantanamo or] [transfer an individual who is detained, into pur- the continental United States for as of June at Naval Sta- poses tion, Cuba, other than trial and Bay, attendant deten- conti- See, States, Alaska, e.g., Hawaii, tion. Appropriations Consolidated nental United or the Act, 2010, ”). Pub.L. No. District Columbia....