Detention: Law of

Government Again Seeks Summary Affirmance, and Opposes Remand, in Rimi

By Wells Bennett
Monday, November 19, 2012, 9:54 AM

In papers filed Friday, the government renewed its request for a summary affirmance, and opposed an attempt by habeas petitioner Mohammed Rimi to remand his appeal to the district court.

Rimi was transferred from Guantanamo to Libya in 2006.  That didn't spell the end of his petition for a writ of habeas corpus: along with Nazul Gul and other ex-detainees, Rimi appealed to the D.C. Circuit, on the theory that he continued to suffer collateral consequences of his past status.  In particular, Rimi argued that Libya's government had detained him after his release by the United States; and that, after the collapse of the Qaddafi regime, habeas counsel needed additional time to contact Rimi and to supplement the record below.

But now, according to the government's new filing, Rimi is no longer in the custody of the Libyan government:

2. Rimi’s motion concedes the dispositive fact in this appeal—that he is no longer in detention in Libya and is not suffering any continuing collateral consequences of detention. For this reason, his motion to remand is futile and should be denied. For the same reasons, the district court’s order dismissing his case as moot should be summarily affirmed.

a. Article III of the Constitution limits the subject matter jurisdiction of the federal courts to adjudication of actual ongoing controversies between litigants. See Preiser v. Newkirk, 422 U.S. 395, 401 (1975). This requirement applies at “all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks omitted). This Court applied this rule in the context of former Guantanamo detainees in Gul, explaining that “[a] former detainee, like an individual challenging his parole, must . . . make an actual showing his prior detention or continued designation burdens him with ‘concrete injuries.’” Gul, 652 F.3d at 17 (Spencer v. Kemna, 523 U.S. 1, 14 (1998)).

In other words, to establish a continuing case or controversy, a former detainee needs to establish continuing injuries redressable in a habeas proceeding against the United States. Rimi’s sole argument against summary affirmance in his earlier motion to govern was that he had been detained in Libya, his counsel had not contacted him since the fall of the Qaddafi government, and it was unclear to what extent he was still detained by Libya or suffering from other restrictions. Rimi’s motion for remand now concedes that he is no longer detained or subject to any restrictions by the government of Libya. In his motion to remand, Rimi identifies no other possible continuing collateral consequence of his United States detention. Indeed, in all of the various filings Rimi has made since this Court decided Gul, he has never even alleged that he is suffering any concrete, redressable collateral consequences other than his detention by Libya.

Appellees previously moved for summary affirmance in this case. At the time, Rimi’s counsel had not succeeded in contacting Rimi since the fall of the Qaddafi government. Rimi’s counsel has now been in contact with Rimi and has determined that he is no longer subject to any restraints on liberty in Libya. Now that Rimi has conceded that he is no longer detained, and has not even alleged—much less demonstrated—any concrete, collateral consequence of detention that are redressable by a United States court and that were not rejected by this Court in Gul, merits briefing of whether Rimi’s habeas claims are moot will serve no purpose. This Court should therefore summarily affirm the district court’s dismissal of his claims.