Liuksila v. Lynch

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) AARNO OLAVI LIUKSILA, ) ) Petitioner, ) ) v. ) Case No. 16-cv-00229 (APM) ) ROBERT F. TURNER, ) ) Respondent. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

Following the denial of his Petition for Writ of Habeas Corpus, see Mem. Op., ECF No.

45 [hereinafter Mem. Op.], Petitioner Aarno Olavi Liuksila asks the court to stay his extradition

pending appeal to the D.C. Circuit, see Pet.’s Mot. to Stay, ECF No. 48 [hereinafter Pet.’s Mot.].

Respondent opposes Petitioner’s request. See Resp.’s Opp’n to Pet.’s Mot., ECF No. 50

[hereinafter Resp.’s Opp’n]. For the reasons discussed below, Petitioner’s Motion is granted.

This court recently discussed the applicable standard for a stay pending appeal in Cigar

Ass’n of America v. U.S. Food & Drug Admin., 317 F. Supp. 3d 555, 560–61 (D.D.C. 2018). The

court need not repeat that discussion here, but it suffices to say that the court applies the “sliding

scale” approach that remains the law of this Circuit. See id. Here, the four factors the court must

consider weigh in favor of a stay.

First, for the factor of likelihood of success on the merits, there can be little doubt that

Petitioner’s appeal will involve “serious legal questions going to the merits, so serious, substantial,

difficult as to make them a fair ground of litigation and thus for more deliberative investigation.”

Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986) (quoting Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977)). In denying

Petitioner’s motion, the court urged the D.C. Circuit to revisit and reverse McGowen v. United

States, 105 F.2d 791 (D.C. Cir. 1939), which compelled the court’s conclusion that the U.S. five-

year limitations period has not run on Plaintiff’s conduct. See Mem. Op. at 2–4, 30–35.

Petitioner’s appeal promises to challenge the continuing validity of McGowen and therefore will

present serious and substantial legal questions on the merits.

Second, Petitioner will suffer irreparable harm if a stay is not granted. Without a stay,

Petitioner could be extradited to Finland to face criminal charges. The United States has not

promised otherwise. See Resp.’s Opp’n at 5 n.4 (stating only that it will not surrender Petitioner

during the pendency of this stay motion). Although the Supreme Court has held in a different

context that removal from the United States by itself is not “categorically irreparable,” Nken v.

Holder, 556 U.S. 418, 435 (2009), this case stands on a much different footing. Unlike the

petitioner in Nken, Petitioner here will not merely have to leave the United States; he will also face

prosecution in Finland, and possible loss of liberty, for an offense that might not be extraditable

under the U.S.-Finland Extradition Treaty because it is time-barred. See Stogner v. California,

539 U.S. 609, 613 (2003) (“[A]n act condoned by the expiration of the statute of limitations is no

longer a punishable offense.”) (quoting H. Black, American Constitutional Law § 266, at 700 (4th

ed. 1927)). Furthermore, his extradition will render his appeal moot. See Lindstrom v. Graber,

203 F.3d 470, 474 (7th Cir. 2000); Artukovic v. Rison, 784 F.2d 1354, 1356 (9th Cir. 1986). Such

devastating consequences constitute irreparable harm. Demjanjuk v. Meese, 784 F.2d 1114, 1118

(D.C. Cir. 1986) (Bork, J.) (although denying stay, observing that “imminent extradition of

petitioner to Israel may qualify as a threat of irreparable harm”); Nezirovic v. Holt, No. 7:13CV428,

2014 WL 3058571, at *2 (W.D. Va. July 7, 2014) (finding irreparable harm on the ground that

2 habeas petitioner’s appeal would be moot if he were extradited); Gamez v. Stafford, No. 12-CV-

1632, 2012 WL 4471579, at *2 (S.D. Cal. Sept. 25, 2012) (same).

Third, both the government and public interests weigh in favor of a stay. See Nken, 556

U.S. at 435 (noting that the third and fourth factors—harm to the opposing party and the public

interest—“merge when the Government is the opposing party”). There is a public interest in

ensuring that a person is not wrongfully surrendered to face prosecution abroad. Cf. id. at 436

(observing that “there is a public interest in preventing aliens from being wrongfully removed,

particularly to countries where they are likely to face substantial harm”). That public interest is

only heightened in this case, where Petitioner will argue that the D.C. Circuit should harmonize

its interpretation of the federal criminal tolling statute with nearly every other federal circuit to

have addressed the issue. There is public interest in promoting uniformity in the law. Cf. N. States

Power Co. v. Prairie Island Mdewakanton Sioux Indian Cmty., 991 F.2d 458, 464 (8th Cir. 1993)

(recognizing, in the context of a preliminary injunction, a public interest in “uniformity in the

regulation of radioactive materials”). Although Respondent is correct that the public likewise has

an interest in the United States promptly fulfilling its legal obligations to its treaty partners, see

Artukovic, 784 F.2d at 1356, the balancing of hardships in this case favors Petitioner.

Accordingly, Petitioner’s Motion to Stay is granted. This court’s order denying the habeas

corpus petition, see Order, ECF No. 46, is stayed pending the conclusion of appellate proceedings

in the D.C. Circuit, including any en banc review. Petitioner shall remain on the same conditions

of release pending the outcome of the appellate proceedings.

Dated: December 18, 2018 Amit P. Mehta United States District Judge