Guantanamo: Litigation

Briefing on Timeliness Ordered in Hentif v. Obama

By Wells Bennett
Thursday, February 28, 2013, 4:00 PM

Remember the Guantanamo detention case of Hentif v. Obama?   

In 2011, the government convinced the district court to reject Fadhel Hussein Saleh Hentif's petition for a writ of habeas corpus.  In July of 2012, the district judge noted, on the case's docket, his denial of the detainee's motion to reconsider.  A redacted opinion explaining that decision was issued a little less than a month afterwards.

But here's the the thing: Hentif noted his appeal on October 8, 2012---that is, 59 days after the redacted opinion's issuance, but 74 days after the docket entry denying his motion.   And federal rules generally require appeals like Hentif's to be filed "within within 60 days after entry of the judgment and order appealed from."  The United States pounced.  It took the position that Hentif's appeal was filed out of time, and therefore advised the D.C. Circuit that it might lack jurisdiction over the case.  Naturally the detainee disagreed, believing his papers to be filed before the lapse of the 60-day period.

Which brings us to yesterday, when a D.C. Circuit panel asked to hear more about the timing issue:

BEFORE: Garland, Chief Judge; Henderson* and Tatel, Circuit Judges

O R D E R

Upon consideration of the notice of apparent defect in this court’s appellate jurisdiction, the opposition thereto, and the reply, it is

ORDERED that the jurisdictional question of the timeliness of this appeal be referred to a merits panel. The parties are directed to file briefs addressing only the jurisdictional question and may not incorporate by reference the arguments previously
submitted.

The Clerk is directed to enter a briefing schedule and to calendar this case for oral argument.

(The asterisk above noted Judge Henderson's apparent vote to dismiss the appeal without further briefing.)

So one party insists that a paper was filed too late, thus depriving the court of jurisdiction; the other denies this, and insists that jurisdiction is proper.  The court, for its part, orders further briefing on timeliness.

But given the case's posture, what will the additional briefing consist of, exactly?  What new arguments will the parties raise?  We'll know soon enough, it seems.