Today the D.C. Circuit handed down its opinion in a Guantanamo detainee's habeas-related appeal. The detainee filed his notice of appeal too late, concluded the three-judge panel, thus divesting the appeals court of jurisdiction. The panel dismissed the appeal.
The detainee, Fadhel Hussein Saleh Hentif, lost his habeas case in the district court in 2011. He then moved to reconsider; the legal issue on appeal arose from what came next. Under 28 U.S.C. § 2107, an appeal must be noted within 60 days "after the entry of such judgment, order or decree." And here, 74 days had elapsed between the district court's filing, on July 27, 2012, of a classified opinion and order denying the reconsideration motion and the notation of the motion's denial on the case's docket, and Hentif's notice of appeal, on October 8, 2012. Since only 59 days had elapsed between the district court's posting of the unclassified, redacted opinion, on August 10, 2012, and Hentif's appeal notice, the question arose as to which was the relevant date for the filing deadline. The government brought this discrepancy to the attention of the D.C. Circuit, which ordered briefing on the timeliness of the notice, and thus, the court's appellate jurisdiction. To determine that, the D.C. Circuit first had to determine which of the two docket items---the first or the second---constituted the clock-starting "entry." (We previewed and recapped oral arguments this fall.)
The opinion, authored by Circuit Judge Judith Rogers on behalf of a three-judge panel that included Circuit Judge David Tatel and Senior Circuit Judge Laurence Silberman, concludes that the earlier of the two postings counted as the "entry" under the relevant federal law; and that Hentif accordingly missed the 60-day deadline for filing his notice.
Judge Rogers looks to the rules that give effect to § 2107: Federal Rule of Appellate Procedure 4, which implements the "entry" requirement established by § 2107; and Federal Rule of Civil Procedure 79(a), which defines the "Contents of Entries," the individual docket items entered by the court clerk. According to the opinion, the July 27 docket item meets all the characteristics of an "entry" under Rule 79: the nature of the document filed is indicated (a classified memorandum and order), as are the substance and the date of the document (the reconsideration motion was denied, on July 26), and the date the item was added to the docket (July 27). The docket item thus "made a record of what happened in the district court"---the reconsideration motion's denial---and put Hentif's lawyer on notice.
The court rejects the detainee's arguments---among other things, that the July 27th item did not satisfy the relevant rules, and that habeas counsel relied to his detriment on guidance about the rules, which the court's clerk later provided. The court reasons that counsel could have sought an extension of the time required to file, or simply noted an appeal protectively.
The court flags as the "most concerning" component of Hentif's argument the idea that the classified nature of the memorandum precluded him from being able to file a notice of appeal. That didn't prevent counsel from learning the reasoning underlying the district court's rejection of Hentif's motion to reconsider. And, the court of appeals goes on, the docket itself naturally made clear that the lower court had denied the motion and thus found no reason to disturb the reasoning behind the earlier denial of Hentif's habeas petition. In addition, counsel was permitted access to the classified memorandum, in a SCIF, even if he was unable to share that information with Hentif personally.