Opinion
Civil Action No. 04-1164 (RBW), Civil Action No. 05-879 (RBW), Civil Action No. 05-883 (RBW), Civil Action No. 05-891 (RBW), Civil Action No. 05-999 (RBW), Civil Action No. 05-1493 (RBW), Civil Action No. 05-1667 (RBW), Civil Action No. 05-1697 (RBW), Civil Action No. 05-2104 (RBW), Civil Action No. 05-2386 (RBW), Civil Action No. 06-1675 (RBW), Civil Action No. 06-1690 (RBW), Civil Action No. 07-1710 (RBW), Civil Action No. 08-2019 (RBW).
April 22, 2009
ORDER
In accordance with the memorandum opinion entered this same date, and consistent with the supplemental case management order entered by this Court on February 19, 2009, as amended by the Court on March 27, 2009, it is
ORDERED that on or before May 4, 2009, any petitioner in the cases captioned above who believes in good faith that the factual allegations against him set forth in the narrative of the factual return filed by the government, even if assumed to be true, do not, as a legal matter, justify his detention pursuant to the authority conferred to the President by the Authorization for Use of Military Force, Pub.L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001), as that authority has been interpreted in the memorandum opinion that accompanies this order, shall file his motion for expedited judgment on the record or his notice of intent to renew a previously-filed motion for expedited judgment on the record, if any he intends to file. It is further
As the Court has endeavored to explain in the past, the sole purpose of allowing the petitioners to file motions for expedited judgment on the record is to provide immediate relief for those petitioners — if there are any — for whom there is no need to consider the evidence adduced by the government in support of their detention because it is clear that the conduct alleged by the government does not warrant military detention as a purely legal matter. Such a motion would be analogous to a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) and would therefore be subject to a similar standard of review. See Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006) (holding that a court "must treat the complaint's factual allegations as true and must grant [the] plaintiff the benefit of all reasonable inferences from the facts alleged" in considering motions to dismiss under Rule 12(b)(6)). Petitioners who contend that there is no factual predicate for their detention should file a cross-motion for judgment on the record along with their opposition to the motion for judgment on the record to be filed by the government in accordance with the case management order issued by the Honorable Thomas F. Hogan of this Court on November 6, 2008, as amended by this member of the Court on December 19, 2008.
ORDERED that the government shall file its opposition to any motions for expedited judgment on the record filed or renewed by the petitioners on or before May 14, 2009. It is further
ORDERED that the petitioners shall file their reply memoranda, if any, in support of their motions for expedited judgment on the record on or before May 26, 2009. It is further
ORDERED that, unless previously excepted from the ten-day deadline set forth in the Court's supplemental case management case order, any petitioner who does not wish to file a motion for expedited judgment on the record or notice of intent to renew a previously-filed motion for expedited judgment on the record shall file his traverse to the government's factual return on or before May 4, 2009.