No.

14-1325
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
KHALFAN KHAMIS MOHAMMED,
Plaintiff - Appellee,
v.
ERIC HOLDER, the U.S. Attorney General,
CHARLES E. SAMUELS, JR., Director of the Federal Bureau of Prisons,
DAVID BERKEBILE, ADX Warden,
HARRELL WATTS, Administrator of National Inmate Appeals, and
FEDERAL BUREAU OF INVESTIGATION,
Defendants Appellants.
MOTION FOR VOLUNTARY DISMISSAL OF APPEAL
Pursuant to Fed. R. App. P. 42(b), defendants-appellants, Eric H. Holder,
Charles E. Samuels, Jr., David Berkebile, Harrell Watts and the Federal Bureau of
Investigation move for voluntary dismissal of this appeal. The parties should bear
their own costs on appeal. Paul Wolf, counsel for appellee, has authorized the
government to state that he opposes this motion.
This case concerns certain Special Administrative Measures (SAMs) setting
forth permissible communications by plaintiff-appellee Khalfan Khamis
Mohammed, a federal prisoner. The SAMs were imposed by the Attorney General
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pursuant to regulation. See 28 C.F.R. 501.3(a). The current SAMs expire on
November 24, 2014, and are subject to renewal or modification following an
administrative process that is now underway. Id. 501.3(c).
The district court in this case held that the governments justifications for
certain SAMs restrictions do not meet the standards of the Administrative Procedure
Act, and the court accordingly remanded for the government to address the issues
raised in the courts opinion. The court entered final judgment (Doc. 397),
accompanied by an opinion (Doc. 396), on June 17, 2014. The district courts
judgment specified that the governments further consideration and resolution of
those issues should take place within the current cycle of SAMs review. Doc.
397 at 1-2.
On August 15, 2014, the government appealed the judgment and opinion.
While the appeal has been pending, the review of the current SAMsrequired by
regulation, as well as by the district courts decisionhas been underway, and will
be completed by November 24, 2014.
This Court, in an order dated October 9, 2014, note[d] a potential
jurisdictional issue, and directed the parties to address the issue of whether the
order being appealed is final and appealable where the district court remanded for
further consideration. This Court need not resolve the jurisdictional question,
however, in light of the voluntary dismissal of this appeal. If the district court were
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to conclude that the governments actions following the current SAMs review cycle
do not satisfy applicable legal standards, the government will, of course, be free to
appeal any adverse decision at that time.
CONCLUSION
For the foregoing reasons, this Court should dismiss the captioned appeal.
DATED this 30th day of October, 2014.
Respectfully submitted,
JOHN F. WALSH
United States Attorney
s/ Susan Prose
SUSAN PROSE
Assistant United States Attorney
1225 Seventeenth Street, Suite 700
Denver, Colorado 80202
Tel: (303) 454-0200
Fax: (303) 454-0407
E-mail: susan.prose@usdoj.gov
USACO.ECFappellate@usdoj.gov
Attorneys for Defendants - Appellants
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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 a commercial virus scanning program, TREND MICRO
Office Scan for Windows, Version 10.6.5372, Engine Version 9.750.1007,
Virus Pattern File 11.243.00, dated 10/29/2014 and according to the program
are free of viruses.
s/ Susan Prose
U.S. Attorneys Office
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CERTIFICATE OF SERVICE
I hereby certify that on this 30th day of October, 2014, I electronically filed
the foregoing MOTION FOR VOLUNTARY DISMISSAL OF APPEAL with
the Clerk of the Court using the CM/ECF system which will send notification of
such filing to the following email addresses:
Paul Wolf, Esq.
paulwolf@yahoo.com
s/ Susan Prose
Susan Prose
U.S. Attorneys Office
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