Terrorism Trials & Investigations

Notice of Appeal Filed Too Late in Hentif?

By Benjamin Wittes
Sunday, November 18, 2012, 4:03 PM

The government has advised the D.C. Circuit Court of Appeals that it may not have jurisdiction over a Guantanamo habeas appeal it is getting ready to hear. Last year, the government prevailed in the district court in the case of Fadhel Hussein Saleh Hentif (ISN 259). The detainee moved to reconsider, but Judge Kennedy denied that motion. While the initial denial of this motion for reconsideration was noted immediately on the docket, it took a while before a redacted opinion denying the motion for reconsideration appeared on the public docket. Normally, a litigant has 60 days to file a notice of appeal in a case like this---and the failure to meet the deadline deprives the higher court of jurisdiction over the case. So the government argues that Hentif had 60 days from the time of the initial notation to notice his appeal. Instead, he took 74 days, though his filing did take place only 59 days after the unsealing of the redacted denial of the motion for reconsideration:

Petitioner filed his notice of appeal 59 days after August 10, 2012, the date upon which the district court entered on the docket the redacted, unclassified version of its classified opinion and order denying reconsideration. His appeal time, however, ran from the “entry of the judgment or order appealed from * * *.” Fed. R. App. P. 4(a)(1)(A), which is the July 27, 2012 judgment denying reconsideration and the earlier 2011 judgment denying habeas corpus relief, not from the issuance of the public version of the court’s opinion.

The government does not quite ask for dismissal of the appeal, but it all-but does so:

Through the filing of this notice, the government advises this Court that it has become aware of an apparent defect in the Court’s jurisdiction over this appeal. If the Court likewise concludes that it lacks appellate jurisdiction, then the proper course would be dismissal of the appeal.