UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
____________________________________ ) SAIFULLAH PARACHA, ) ) Petitioner, ) ) v. ) Civil Action No. 04-2022 (PLF) ) JOSEPH R. BIDEN, JR., et al., ) ) Respondents. ) ____________________________________) ) SAIFULLAH PARACHA, ) ) Petitioner, ) ) v. ) Civil Action No. 21-2567 (PLF) ) JOSEPH R. BIDEN, JR., et al., ) ) Respondents. ) ____________________________________)
MEMORANDUM OPINION AND ORDER
Petitioner Saifullah Paracha has filed a Motion for Preliminary Injunction
(“Mot.”), Civil Action No. 21-2567 [Dkt. No. 28], requiring respondents to immediately submit
information, a certification, and a report to Congress and several congressional committees, as
specified in Section 308 of the Intelligence Authorization Act for Fiscal Year 2012 (“IAA”),
Pub. L. No. 112-87, 125 Stat. 1876, 1883 (codified at 10 U.S.C. § 801 note), and Section 1034 of
the National Defense Authorization Act for Fiscal Year 2016 (“NDAA”), Pub. L. No. 114-92,
129 Stat. 726, 969-71 (codified at 10 U.S.C. § 801 note). Upon careful consideration of the
parties’ filings and the relevant legal authorities, the Court will deny petitioner’s motion. “A preliminary injunction is an extraordinary remedy never awarded as of right.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A movant seeking preliminary
relief must make a “clear showing that four factors, taken together, warrant relief: likely success
on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the
equities in its favor, and accord with the public interest.” Archdiocese of Washington v. Wash.
Metro. Area Transit Auth., 897 F.3d 314, 321 (D.C. Cir. 2018) (quoting League of Women
Voters of the United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016)); see also Sherley v.
Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (noting that a preliminary injunction “may only be
awarded upon a clear showing that the plaintiff is entitled to such relief” (quoting Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. at 22)). Of these, the most important factor is whether a
movant has established a likelihood of success on the merits. See Aamer v. Obama, 742 F.3d
1023, 1038 (D.C. Cir. 2014).
Before the Supreme Court’s decision in Winter, courts in this Circuit weighed
these four factors on a “sliding scale,” under which the movant need not “make as strong a
showing” on one factor if they “make[] an unusually strong showing” on another. Davis v.
Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (quoting Davenport v.
Int’l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999)); accord Damus v. Nielsen, 313 F.
Supp. 3d 317, 326 (D.D.C. 2018). This Circuit has hinted, however, that “a likelihood of
success” and “a likelihood of irreparable harm” are “independent, free-standing requirement[s]
for a preliminary injunction.” Sherley v. Sebelius, 644 F.3d at 392-93 (quoting Davis v. Pension
Benefit Guar. Corp., 571 F.3d at 1296 (Kavanaugh, J., concurring)); see Archdiocese of
Washington v. Wash. Metro. Area Transit Auth., 897 F.3d at 334 (declining to resolve whether
the “sliding scale” approach is still valid after Winter). Regardless, “a failure to show a
2 likelihood of success on the merits alone is sufficient to defeat a preliminary-injunction motion.”
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016)
(citing Ark. Dairy Coop. Ass’n v. U.S. Dep’t of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009)); see
also M.G.U. v. Nielsen, 325 F. Supp. 3d 111, 117 (D.D.C. 2018).
The Court concludes that petitioner cannot establish a likelihood of success on the
merits because the claims raised in his preliminary injunction motion “do not sound in habeas”
and consequently are barred by the Military Commissions Act of 2006, Pub. L. No. 109-366, § 7,
120 Stat. 2600, 2635-36 (codified at 28 U.S.C. § 2241(e)). Aamer v. Obama, 742 F.3d at 1030.
That statute provides:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application 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.
(2) Except as provided in [Section 1005(e) of the Detainee Treatment Act of 2005], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
28 U.S.C. § 2241(e). As this Court has previously recognized, although the Supreme Court held
that subsection (e)(1) “‘operates as an unconstitutional suspension of the writ’ of habeas corpus,”
subsection (e)(2) “remains in effect.” Paracha v. Obama, 194 F. Supp. 3d 7, 11 (D.D.C. 2016)
(quoting Boumediene v. Bush, 553 U.S. 723, 733 (2008)); see also Aamer v. Obama, 742 F.3d
at 1030 (noting that “section 2241(e)(2) . . . continues in force” (citing Al-Zahrani v. Rodriguez,
669 F.3d 315, 319 (D.C. Cir. 2012))).
Under Section 2241(e)(2), this Court lacks jurisdiction to consider a claim that
“do[es] not sound in habeas.” Aamer v. Obama, 742 F.3d at 1030. And under the laws of this
3 Circuit, a claim that sounds in habeas is one in which a prisoner challenges either “the very fact
or duration of his physical imprisonment” or “the conditions of his confinement.” Id. at 1032
(quoting Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)); see also Al-Qahtani v. Trump, 443 F.
Supp. 3d 116, 128 (D.D.C. 2020) (“Habeas corpus tests not only the fact but also the form of
detention.” (quoting Hudson v. Hardy, 424 F.2d 854, 855 n.3 (D.C. Cir. 1970))).
Mr. Paracha raises two claims in his motion for preliminary injunction, neither of
Free access — add to your briefcase to read the full text and ask questions with AI
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
____________________________________ ) SAIFULLAH PARACHA, ) ) Petitioner, ) ) v. ) Civil Action No. 04-2022 (PLF) ) JOSEPH R. BIDEN, JR., et al., ) ) Respondents. ) ____________________________________) ) SAIFULLAH PARACHA, ) ) Petitioner, ) ) v. ) Civil Action No. 21-2567 (PLF) ) JOSEPH R. BIDEN, JR., et al., ) ) Respondents. ) ____________________________________)
MEMORANDUM OPINION AND ORDER
Petitioner Saifullah Paracha has filed a Motion for Preliminary Injunction
(“Mot.”), Civil Action No. 21-2567 [Dkt. No. 28], requiring respondents to immediately submit
information, a certification, and a report to Congress and several congressional committees, as
specified in Section 308 of the Intelligence Authorization Act for Fiscal Year 2012 (“IAA”),
Pub. L. No. 112-87, 125 Stat. 1876, 1883 (codified at 10 U.S.C. § 801 note), and Section 1034 of
the National Defense Authorization Act for Fiscal Year 2016 (“NDAA”), Pub. L. No. 114-92,
129 Stat. 726, 969-71 (codified at 10 U.S.C. § 801 note). Upon careful consideration of the
parties’ filings and the relevant legal authorities, the Court will deny petitioner’s motion. “A preliminary injunction is an extraordinary remedy never awarded as of right.”
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A movant seeking preliminary
relief must make a “clear showing that four factors, taken together, warrant relief: likely success
on the merits, likely irreparable harm in the absence of preliminary relief, a balance of the
equities in its favor, and accord with the public interest.” Archdiocese of Washington v. Wash.
Metro. Area Transit Auth., 897 F.3d 314, 321 (D.C. Cir. 2018) (quoting League of Women
Voters of the United States v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016)); see also Sherley v.
Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (noting that a preliminary injunction “may only be
awarded upon a clear showing that the plaintiff is entitled to such relief” (quoting Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. at 22)). Of these, the most important factor is whether a
movant has established a likelihood of success on the merits. See Aamer v. Obama, 742 F.3d
1023, 1038 (D.C. Cir. 2014).
Before the Supreme Court’s decision in Winter, courts in this Circuit weighed
these four factors on a “sliding scale,” under which the movant need not “make as strong a
showing” on one factor if they “make[] an unusually strong showing” on another. Davis v.
Pension Benefit Guar. Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009) (quoting Davenport v.
Int’l Bhd. of Teamsters, 166 F.3d 356, 361 (D.C. Cir. 1999)); accord Damus v. Nielsen, 313 F.
Supp. 3d 317, 326 (D.D.C. 2018). This Circuit has hinted, however, that “a likelihood of
success” and “a likelihood of irreparable harm” are “independent, free-standing requirement[s]
for a preliminary injunction.” Sherley v. Sebelius, 644 F.3d at 392-93 (quoting Davis v. Pension
Benefit Guar. Corp., 571 F.3d at 1296 (Kavanaugh, J., concurring)); see Archdiocese of
Washington v. Wash. Metro. Area Transit Auth., 897 F.3d at 334 (declining to resolve whether
the “sliding scale” approach is still valid after Winter). Regardless, “a failure to show a
2 likelihood of success on the merits alone is sufficient to defeat a preliminary-injunction motion.”
Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs, 205 F. Supp. 3d 4, 26 (D.D.C. 2016)
(citing Ark. Dairy Coop. Ass’n v. U.S. Dep’t of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009)); see
also M.G.U. v. Nielsen, 325 F. Supp. 3d 111, 117 (D.D.C. 2018).
The Court concludes that petitioner cannot establish a likelihood of success on the
merits because the claims raised in his preliminary injunction motion “do not sound in habeas”
and consequently are barred by the Military Commissions Act of 2006, Pub. L. No. 109-366, § 7,
120 Stat. 2600, 2635-36 (codified at 28 U.S.C. § 2241(e)). Aamer v. Obama, 742 F.3d at 1030.
That statute provides:
(1) No court, justice, or judge shall have jurisdiction to hear or consider an application 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.
(2) Except as provided in [Section 1005(e) of the Detainee Treatment Act of 2005], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
28 U.S.C. § 2241(e). As this Court has previously recognized, although the Supreme Court held
that subsection (e)(1) “‘operates as an unconstitutional suspension of the writ’ of habeas corpus,”
subsection (e)(2) “remains in effect.” Paracha v. Obama, 194 F. Supp. 3d 7, 11 (D.D.C. 2016)
(quoting Boumediene v. Bush, 553 U.S. 723, 733 (2008)); see also Aamer v. Obama, 742 F.3d
at 1030 (noting that “section 2241(e)(2) . . . continues in force” (citing Al-Zahrani v. Rodriguez,
669 F.3d 315, 319 (D.C. Cir. 2012))).
Under Section 2241(e)(2), this Court lacks jurisdiction to consider a claim that
“do[es] not sound in habeas.” Aamer v. Obama, 742 F.3d at 1030. And under the laws of this
3 Circuit, a claim that sounds in habeas is one in which a prisoner challenges either “the very fact
or duration of his physical imprisonment” or “the conditions of his confinement.” Id. at 1032
(quoting Preiser v. Rodriguez, 411 U.S. 475, 500 (1973)); see also Al-Qahtani v. Trump, 443 F.
Supp. 3d 116, 128 (D.D.C. 2020) (“Habeas corpus tests not only the fact but also the form of
detention.” (quoting Hudson v. Hardy, 424 F.2d 854, 855 n.3 (D.C. Cir. 1970))).
Mr. Paracha raises two claims in his motion for preliminary injunction, neither of
which challenges the legality of his detention or his conditions of confinement. First, he argues
that respondents have failed to provide to designated congressional committees a certification
and a report, a process required by statute to be done at least 30 days before a Guantanamo
detainee can be transferred to the custody or control of another country. See NDAA, Pub. L. No.
114-92, § 1034, 129 Stat. at 969-71 (noting that the certification must, among other things,
indicate that “the transfer concerned is in the national security interests of the United States,”
describe the security and counter-terrorism capabilities of the receiving country, and “include[]
an intelligence assessment” of the receiving country). Second, he argues that respondents have
failed to submit to Congress other information that similarly must be provided at least 30 days
prior to the transfer or release of a Guantanamo detainee. See IAA, Pub. L. No. 112-87, § 308,
125 Stat. at 1883 (requiring, among other things, “[t]he terms of any agreement with the
[receiving country] for the acceptance of [the detainee]”). Mr. Paracha suggests that
respondents’ alleged inaction with respect to both statutes has “delayed” his release and that
compelling the government to immediately submit the requested information, certification, and
report will increase the likelihood that he will be transferred or released soon, see Mot. at 9-10,
14-15, but he “does not actually challenge the legality of his confinement, nor any aspect of the
place or conditions of his confinement.” Paracha v. Obama, 194 F. Supp. 3d at 11. His claims
4 therefore are barred under Section 2241(e)(2) because they “do not sound in habeas.” Aamer v.
Obama, 742 F.3d at 1030.
For the foregoing reasons, it is hereby
ORDERED that the Motion for Preliminary Injunction [Dkt. No. 28] in Civil
Action No. 21-2567 is DENIED.
SO ORDERED.
________________________ /s/ PAUL L. FRIEDMAN United States District Judge
DATE: March 2, 2022