United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 18, 2020 Decided January 26, 2021

No. 19-1234

PHILIP LAWRENCE SUNDEL,

PETITIONER

v.

UNITED STATES OF AMERICA,

RESPONDENT

On Petition for Review of a Final Order of 

the U.S. Court of Military Commission Review

Philip Sundel, pro se, argued the cause and filed the briefs 

for petitioner.

Jeffrey M. Smith, Attorney, U.S. Department of Justice, 

argued the cause and filed the brief for respondent. Joseph F. 

Palmer and Danielle S. Tarin, Attorneys, entered appearances.

Before: HENDERSON and WALKER, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WALKER.

WALKER, Circuit Judge: In this case, a defense attorney 

named Philip Sundel (with no client) petitioned a court (with 

no jurisdiction) to reverse a procedural ruling (excluding the 
2

public from a classified hearing) in an appeal filed by other 

attorneys who (like Sundel) have no client. Welcome to 

Guantanamo Bay.

I

Ibrahim al Qosi was and remains an Islamist terrorist. 

Ten years ago, he pled guilty to two counts of terrorism-related 

charges. As part of his plea agreement, al Qosi waived his 

right to appeal. In exchange, the government released him to 

his native Sudan after just two years’ imprisonment. Some 

time later, al Qosi resurfaced as a leader of al Qaeda in the 

Arabian Peninsula, encouraging lone wolf terrorist attacks 

against the United States. In the years since then — indeed, in 

the eight years since his release from custody — al Qosi has 

had no contact with his former lawyers at a division of the 

Department of Defense called the Military Commissions 

Defense Organization. But al Qosi’s former lawyers have 

nonetheless continued to challenge his conviction.

Enter Philip Sundel, another lawyer at the Military 

Commissions Defense Organization. For reasons he didn’t 

offer when asked by this Court, he wanted to watch a recent 

hearing on al Qosi, even though he has never been al Qosi’s 

lawyer.1 

Because most proceedings for Guantanamo Bay detainees

are open to the public, Sundel’s desire to watch the hearing 

would not normally have been a problem. But this particular 

hearing concerned classified information. So the military 

judge closed it. 

1

See generally United States v. DuBay, 37 C.M.R. 411 (C.M.A. 

1967) (per curiam) (establishing a hearing to determine collateral 

issues that require findings of fact and conclusions of law).
3

Sundel was undeterred. He moved the court to permit 

him to attend. The military judge denied his motion.

 

Sundel then asked the Court of Military Commission 

Review to allow him to read an unredacted transcript of the 

closed hearing. He lost again. 

Now Sundel asks this Court for relief. 

 

II

At oral argument, the Court raised concerns about 

Sundel’s prudential standing — and the possible lack thereof. 

Prudential standing encompasses “at least three broad 

principles: the general prohibition on a litigant’s raising 

another person’s legal rights, the rule barring adjudication of 

generalized grievances more appropriately addressed in the 

representative branches, and the requirement that a plaintiff’s 

complaint fall within the zone of interests protected by the law 

invoked.” Lexmark International, Inc. v. Static Control 

Components, Inc., 572 U.S. 118, 126 (2014) (cleaned up).

 

Here, Sundel does not invoke this cause of action based on 

his representation of detainees at Guantanamo Bay. That part 

of his job is, for these purposes, irrelevant. Instead, he is suing 

as a member of the public, standing in the same shoes as any 

other citizen could.

But Sundel, to state the obvious, is no ordinary citizen. 

He works for the Department of Defense. That is the same 

agency that runs the military tribunals at Guantanamo Bay. 

And agency employees don’t usually drag their agency into 

federal court after losing an internal policy debate. After all, 

it would be odd for a lawyer at the FCC to sue the FCC over 
4

the FCC’s adoption of a procedural rule in a recent FCC 

adjudication — and to do so as a member of the public. So 

too is it odd that Sundel, a lawyer within the Department of 

Defense, is suing the Department, as a member of the public, 

over an internal policy that closed a classified hearing.

 

To be clear, government lawyers often have a right and a 

duty to argue against proposed policies within the agency’s 

walls. And when they think a policy is illegal, it is their job to 

say so. See, e.g., Steven A. Steinbach, The Two Lives of 

Laurence Silberman: Political Service and Judging, available 

at https://dcchs.org/wp-content/uploads/2019/06/Silbermanoral-history-summary-revised.pdf (Undersecretary of Labor 

Laurence Silberman submitted a resignation letter “after a runin with Chuck Colson, who was improperly ‘trying to fix’ DOL 

enforcement actions”). But we are not saying that, having lost 

the internal debate, a government lawyer can, as a member of 

the public, litigate the debate’s outcome in federal court.

 

Nor are we opining on the constitutionality of that debate’s 

outcome. It is an open question whether the public has a First 

Amendment right to attend hearings related to detainees at 

Guantanamo Bay. For now, we simply note that allowing a 

government lawyer to litigate that question as a member of the 

public would invite ill-advised litigation in other contexts.

In short, Sundel may or may not have prudential standing.2 

But we need not address that precise issue today because there 

is a clearer reason we must dismiss Sundel’s case: We lack 

subject matter jurisdiction.

2 Our Circuit recognizes prudential standing as jurisdictional, 

Association of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 674 

(D.C. Cir. 2013) (per curiam), but some have called that into question 

in light of Supreme Court precedent, see id. at 677 (Silberman, J., 

concurring) (collecting cases). 
5

 

III

The Constitution gives Congress the power to “ordain and 

establish” “inferior Courts.” U.S. CONST. art. III, § 1. And if 

Congress can establish inferior courts, Congress can also set 

the boundaries for those courts’ jurisdiction. E.g., Moms 

Against Mercury v. FDA, 483 F.3d 824, 827 (D.C. Cir. 2007) 

(quoting Cutler v. Hayes, 818 F.2d 879, 887 n.61 (D.C. Cir. 

1987)). As to appeals taken from the military commission 

system, Congress vested this Court with jurisdiction only over 

“the validity of a final judgment rendered by a military 

commission (as approved by the convening authority and, 

where applicable, as affirmed or set aside as incorrect in law by 

the United States Court of Military Commission Review).” 10 

U.S.C. § 950g(a); see Khadr v. United States, 529 F.3d 1112, 

1117 (D.C. Cir. 2008).

 

Here, Sundel ultimately appeals the military judge’s 

decision to close the hearing. We can review that challenge 

only if it is, among other things, a “final judgment.” In the 

military commission system, a final judgment is akin to 

a conviction. 3 Yet Sundel appeals not a conviction — a 

judgment — but rather a decision. Although other 

jurisdictional statutes may allow an aggrieved party to appeal 

decisions, see, e.g., 28 U.S.C. § 1291, in the military 

commission context, Congress took a narrower approach and 

allowed appeals only from judgments. Because Sundel does 

not appeal a judgment, we lack jurisdiction. 

3

“The MCA provides an appeal as of right to our [C]ourt. The 

question in this case is when that argument to us may occur. The 

district court decided that Article III review should occur at the time 

that Congress contemplated: after any conviction and accompanying 

appeal in the military system.” In re Al-Nashiri, 835 F.3d 110, 118, 

122 (D.C. Cir. 2016) (emphasis added). 
6

Sundel counters that the collateral-order doctrine gives this 

Court jurisdiction. The collateral-order doctrine “permits 

appeals not only from a final decision by which a district court 

disassociates itself from a case, but also from a small category 

of decisions that, although they do not end the litigation, must 

nonetheless be considered ‘final.’” Swint v. Chambers County

Commission, 514 U.S. 35, 42 (1995) (cleaned up). The 

doctrine is not an independent basis for jurisdiction but rather

a “practical construction” of the word “final” in 28 U.S.C. 

§ 1291 — a practical construction that Sundel argues should 

apply here. See Swint, 514 U.S. at 41–42 (cleaned up). Even 

if we adopted Sundel’s construction, we would still lack 

jurisdiction. “Final” is an adjective, and “[a]djectives modify 

nouns — they pick out a subset of a category that possesses a 

certain quality.” Cf. Weyerhaeuser Co. v. U.S. Fish & Wildlife 

Service, 139 S. Ct. 361, 368 (2018). Thus, “[a]ccording to the 

ordinary understanding of how adjectives work,” id., a “final 

judgment” would still need to be a “judgment.” So no matter 

how broadly or narrowly we construe the word “final” — no 

matter how many practical considerations we take into account

— we would still, at the end of the day, lack a judgment. And 

because we do not have a judgment, we do not have 

jurisdiction.

* * *

We dismiss Sundel’s petition for lack of subject matter

jurisdiction.