Case No. No.

14-1325

UNITED STATES COURT OF APPEALS
FOR 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
paulwolf@yahoo.com
Counsel for
Khalfan Khamis Mohammed


October 31, 2014




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:
(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.
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 Tenth
Circuit 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.
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/A
paulwolf@yahoo.com


October 31, 2014






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 on
all counsel of record registered to receive electronic Notices of Electronic
Filing generated by CM/ECF.

/s/ Paul Wolf
_________________