khalfan response to voluntary dismissal motion

8/10/2019 Khalfan Response to Voluntary Dismissal Motion

1/6

Case No. No. 14-1325

UNITED STATES COURT OF APPEALSFOR THE TENTH CIRCUIT

_________________________________________

ERIC HOLDER, et. al.

v.

KHALFAN KHAMIS MOHAMMED

This Brief Relates to District Court Case Number:

1:07-cv-02697-MSK-BNB

__________________________________________

On Appeal from the United States District Court

for the District of Colorado

(The Honorable Marcia S. Krieger)

_________________________________________

Appellee's Response to

Motion for Voluntary Dismissal of Appeal_________________________________________

Paul Wolf

PO Box 46213

Denver, CO 80201

(202) 431-6986

[email protected]

Counsel for

Khalfan Khamis Mohammed

October 31, 2014


2/6

On October 9, 2014, the Court ordered the parties to file memorandum

briefs addressing the issue of whether the order being appealed is final and

appealable where the district court remanded issues for further

consideration. The next day, on October 10, 2014, the Appellant filed his

"Brief on Preliminary Jurisdictional Question." The Court had ordered the

parties to submit their briefs by yesterday, October 30, 2014. The Appellant

has failed to file a brief as ordered by the Court, and apparently doesn't

intend to file anything nunc pro tunc.

The sanction for refusing to file a brief is obvious. The Appellant has

conceded the arguments in the Appellee's brief and waived any objections.

See Rohr v. Allstate Financial Services, 529 Fed. Appx. 936, 940 (10th Cir.

July 18, 2013) (party waived arguments inadequately addressed in its

opening brief) If the Court determines that it lacks jurisdiction over this

appeal, then its "only function remaining [will be] that of announcing the fact

and dismising the case." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,

94 (1998). This should not be in the form of a voluntary dismissal, but a per

curiam order that the Court has dismissed the appeal for lack of jurisdiction.

Id.

The Appellant's argument that it should be allowed to voluntarily

dismiss its appeal has no merit. The Appellant cites to FRAP Rule 42(b),

which states that:


3/6

(b) Dismissal in the Court of Appeals. The circuit clerk may dismiss a

docketed appeal if the parties file a signed dismissal agreement

specifying how costs are to be paid and pay any fees that are due. But

no mandate or other process may issue without a court order. An

appeal may be dismissed on the appellant's motion on terms agreed to

by the parties or fixed by the court.

The parties have not signed a dismissal agremment and did not agree on

terms for dismissal. The Appellee had proposed that the parties could

simplify the resolution of the appeal by stipulating that the Court of Appeals

had no jurisdiction. The Appellant refused to stipulate to this, and should

therefore be made to explain the basis for the appeal.

The Appellant's Motion for Voluntary Dismissal cannot be taken at

face value. The Appellant argues that it may moot the issues to avoid a

judgment:

While the appeal has been pending, the review of the current SAMs -

required by regulation, as well as by the district courts decision - has

been underway, and will be completed by November 24, 2014.

Appellant's Motion for Voluntary Dismissal at 2. The problem with this

argument is that the Appellant has always known that Mr. Mohammed's

SAMs would be renewed in November. Why then, did the Appellant file this

appeal? The Appellant's strategy was to negotiate with Mr. Mohammed in

isolation from his attorney, while depriving the District Court of its power to

order the Appellant to provide status reports. This is unacceptable and the

Appellant should be called upon to explain a non-frivolous basis for this

appeal.


4/6

The Appellee doubts that the Appellant ever had a good faith basis for

appeal, and views this incident in the context of a dispute over whether

undersigned counsel may assist Mr. Mohammed in the administrative

proceedings after the remand. On its face, this appeal appears to have been

made solely for the purpose of depriving the District Court of jurisdiction.

See Exhibit 1 to Appellee's Jurisdictional Brief filed on October 10, 2014,

which reproduces the District Court's Order, at 43. ("In addition, the Court

will retain jurisdiction over this matter and may, upon appropriate request

by Mr. Mohammed or of the Courts own accord, require the FBI to provide

periodic status reports regarding the status of the issues on remand.") 1

In the meantime, the Appellant met with Mr. Mohammed to negotiate

a settlement or resolution of his claims, without allowing me to participate.

See Exhibit A, attached hereto, Plaintiff-Appellee's Reply in Support of his

Motion for a Status Report. Excluding me from discussions with my client

1 On October 7, 2014 the District Court issued a minute order, the text of

which reads: "ORDER denying [405] Motion for Order Directing the

Defendants to Provide Status Report. This Motion is denied for numerous

reasons. First, the Court did not retain jurisdiction or require the Defendants

to file any status reports. Second, the directive to the FBI was re-evaluate the

SAMS applied to him in the current cycle of SAMs review, which has not

been concluded. Third, the Court's judgment has been appealed to the TenthCircuit Court of Appeals, and it is not clear that this Court has jurisdiction to

revise its orders pending appeal. Finally, according to the representations of

the Plaintiff's trial counsel is not clear that he is authorized to act on behalf

of the Plaintiff. by Chief Judge Marcia S. Krieger on 10/7/2014. Text Only

Entry(msk, )" The issue of whether Mr. Mohammed wants undersigned

counsel to represent him was resolved when Mr. Mohammed wrote letters to

both the District Court and Court of Appeals, afirming the relationship.


5/6

violates attorney ethics rules. For this reason, the Appellant's motion should

be denied.

The Plaintiff is entitled to sanctions for the frivolous appeal pursuant

to F.R.A.P. Rule 38. Undersigned counsel will make a separate motion for

fees at the lodestar rate, once the Appellant has had sufficient time to

respond. Awarding fees is especially appropriate in this pro bono case, where

Appellant's claims in District Court were also frivolous, and expensive for me

to disprove. Whether Mr. Mohammed has been harmed by being deprived of

counsel during administrative proceedings is an issue we can address in the

District Court.

Conclusion

For the forgoing reasons, the Court should dismiss this appeal for lack

of jurisdiction, and not because of the Appellant's voluntary dismissal motion.

Respectfully submitted,

/s/ Paul Wolf

___________________

Paul Wolf CO Bar #42107

Attorney for Khalfan Khamis Mohammed

PO Box 46213

Denver, CO 80201

Tel. (202) 431-6986

Fax N/[email protected]

October 31, 2014


6/6

Certificate of Digital Submission

I hereby certify that with respect to the foregoing

(1) all required privacy redactions have been made;

(2) if required to file additional hard copies, that the ECF submission is an

exact copy of those documents;

(3) the digital submissions have been scanned for viruses with the most

recent version of VirusTotal, a commercial virus scanning program.

/s/ Paul Wolf

__________________

Paul Wolf

Certificate of Service

I hereby certify that I caused the foregoing document to be

electronically filed with the Clerk of the Court using CM/ECF on October 31,

2014. I also certify that the foregoing document is being served this day onall counsel of record registered to receive electronic Notices of Electronic

Filing generated by CM/ECF.

/s/ Paul Wolf

_________________

khalfan response to voluntary dismissal motion

Documents