No En Banc Hearing in Pre-Transfer Notice Appeal

By Larkin Reynolds
Wednesday, January 12, 2011, 3:23 PM

Yesterday the D.C. Circuit deniedpetition for initial hearing en banc in Abdah v. Obama (No. 05-5224), a case involving the same type of pre-transfer notice orders as those at issue in Kiyemba II.  Kiyemba II, readers may recall, was the D.C. Circuit case that essentially vacated a district court-imposed requirement that the government give 30 days' notice prior to transferring any detainee from Guantanamo.

The D.C. Circuit had all but decided that these cases would be subject to the same rule of law as Kiyemba II, and asked the petitioners to show cause why the remaining notice orders should not be vacated.  In doing so, the petitioners asked the D.C. Circuit to hear the case en banc--an effort to get the Kiyemba II result overturned (presumably because only an en-banc ruling would overturn the earlier panel decision). The D.C. Circuit declined hear the case en banc, though not without dissent from Judges Griffith, Tatel, and Rogers.

Lyle Denniston's excellent SCOTUSblog write-up is here.  Since the petitioners asked the court to not vacate the remaining notice orders in the event that an en banc hearing were not granted but rather to remand the cases so the district court could "consider any evidence that Appellees may present on issues not decided by Kiyemba II," this appeal has not quite reached final disposition.