United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 2013 Decided November 5, 2013
No. 12-5314
FADHEL HUSSEIN SALEH HENTIF, DETAINEE
AND HAYKAL MOHAMMED SALEH HENTIF,
AS NEXT FRIEND OF FADHEL HUSSEIN SALEH HENTIF,
APPELLANTS
v.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:06-cv-01766)
Brent Nelson Rushforth argued the cause for appellants.
With him on the briefs were M. Alexander Bowie II, David
Muraskin, and Robert L. Palmer.
Laura G. Ferguson, Timothy P. O'Toole, and Mia P.
Haessly were on the brief for amicus curiae National
Association of Criminal Defense Lawyers in support of
appellants.
Anne Murphy, Attorney, U.S. Department of Justice, argued
the cause for appellees. With her on the brief were Stuart F.
2
Delery, Acting Assistant Attorney General, Ronald C. Machen
Jr., U.S. Attorney, and Matthew M. Collette, Attorney.
Before: ROGERS and TATEL, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Under 28 U.S.C. § 2107, an appeal
must be filed “within [sixty] days after the entry of such judgment,
order or decree” to be appealed where the United States is a party. Id.
§ 2107(a) & (b)(1). The requirement of a timely notice of appeal
under § 2107 is jurisdictional. Bowles v. Russell, 551 U.S. 205, 209
(2007). The question before the court is whether “the entry” of the
relevant order under § 2107 occurred when the district court clerk’s
office posted on its docket a notice that the district court had issued a
classified memorandum and order denying a motion for
reconsideration of the denial of a petition for a writ of habeas corpus
and that a redacted version would be posted when it became available,
or when the redacted opinion and order were subsequently posted on
the docket. If the former was “the entry,” then the notice of appeal
was untimely because it was filed more than sixty days after the entry
that the district court had issued its classified memorandum and order.
If the latter, then the appeal is timely.
Although classified decisions and orders present special
considerations in determining whether a party has adequate
information to make an intelligent decision whether to appeal, cf. Roe
v. Flores-Ortega, 528 U.S. 470, 479 (2000), that problem can be
avoided by the filing of a protective notice of appeal. We conclude
that the first posting qualifies as an “entry” under § 2107.
Consequently, because the notice of appeal was untimely filed, this
court lacks jurisdiction and Hentif’s appeal must be dismissed.
I.
Fadhel Hussein Saleh Hentif is a Yemeni citizen who has been
detained at the Naval Base at Guantanamo Bay since 2002. He is on
3
the list of detainees approved for transfer. At all times relevant to this
appeal, Hentif was represented by counsel who filed pleadings on his
behalf and who had security clearances to view classified materials
(i.e., they were “cleared counsel”). See Appellant’s Br. 9–10;
Appellee’s Br. 5–6.
In 2006, Hentif filed a petition for a writ of habeas corpus. The
district court denied the petition, and on August 1, 2011, the district
court clerk’s office posted on the docket a “NOTICE OF FILING” of
the memorandum opinion denying the habeas petition. Hentif v.
Gates, et al., 1:06-cv-01766, Docket # 279. A hyperlink led to a
“NOTICE OF FILING” that the classified opinion had been filed with
the Court Security Office and that “[t]he Court will enter an
unclassified version . . . on the docket as soon as it becomes
available.” On August 29, 2011, Hentif filed a classified motion for
reconsideration pursuant to Federal Rule of Civil Procedure 59(e) on
the ground of newly discovered evidence; a docket posting of August
30, 2011 gave “NOTICE of Classified Filing Regarding Petitioners
Motion for Reconsideration.” Docket # 280. A posting of September
15, 2011 (with a hyperlink) stated: “Unclassified version of the
MEMORANDUM OPINION denying the petition for a writ of habeas
corpus.” Docket # 281.
On July 27, 2012, the district court clerk’s office posted a
“NOTICE” on the docket (without a docket number or hyperlink)
stating that “the Court on July 26, 2012 issued a classified
memorandum and order denying . . . Hentif[]’s motion for
reconsideration. The Court will post an unclassified version to the
docket when it becomes available.” On August 10, 2012, the docket
posting (with a hyperlink) states: “REDACTED MEMORANDUM
AND ORDER denying petitioner’s Motion [] for Reconsideration.”
Docket # 290.
On October 8, 2012, Hentif filed a notice of appeal to this court
of the denials of his habeas petition and his motion for
reconsideration. Docket # 292. Hentif’s notice of appeal was filed
fifty-nine days after the August 10 posting but more than sixty days
after the July 27 posting. The government has waived any objection
to procedural defects to the extent they are not jurisdictional. See
4
Appellee’s Br. 9. Although requirements that appear only in
procedural rules are not jurisdictional and therefore subject to waiver,
see, e.g., Obaydullah v. Obama, 688 F.3d 784, 789 (D.C. Cir. 2012),
“entry” is a requirement in the statute marking the beginning of the
jurisdictional sixty-day period in § 2107(b). Therefore no party may
waive it. Cf. Bowles, 551 U.S. at 211–13.
II.
Whether this court has jurisdiction over Hentif’s appeal depends
on which docket posting — that on July 27, 2012 or that on August
10, 2012 — triggered the running of the sixty-day period under 28
U.S.C. § 2107(a) & (b)(1). Deciding which posting was the “entry”
under § 2107 presents a question of statutory interpretation. The
court’s interpretation naturally begins with the statutory text and the
presumption that Congress has employed the ordinary meaning of the
words it used unless there are reasons to indicate it intended another
meaning. See, e.g., Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt.
Dist., 541 U.S. 246, 252 (2004). The ordinary meaning of “entry” is
the “[a]ct of making or entering a record.” WEBSTER’S NEW
INTERNATIONAL DICTIONARY (2d ed. 1942). The definitions of
“entry” in BLACK’S LAW DICTIONARY (9th ed. 2009) and MERRIAM-
WEBSTER’S COLLEGIATE DICTIONARY (10th ed. 1993) are to the same
effect. BLACK’S defines “entry” as “[t]he placement of something
before the court or on the record.” Words, however, are to be
considered in their context, see, e.g., King v. St. Vincent’s Hosp., 502
U.S. 215, 221 (1991), and here the context is defined by the rules of
procedure.
Pursuant to the Rules Enabling Act, 28 U.S.C. § 2072-2074
(2006), Congress authorized the Supreme Court to “prescribe general
rules of practice and procedure and rules of evidence,” id. § 2072(a),
for the federal courts so long as those rules do not “abridge, enlarge,
or modify any substantive right.” Id. § 2072(b). A rule of procedure,
“if within the power delegated to [the Supreme Court], has the force
of a federal statute.” Sibbach v. Wilson & Co., 312 U.S. 1, 13 (1941);
accord U.S. v. Brown, 483 F.2d 1314, 1316 (D.C. Cir. 1973). More
particularly, this court has explained that the rules promulgated by the
Supreme Court and left undisturbed by Congress have the force “not
5
of a legislative enactment, but of a regulation pursuant to the Act”
because they are void if in excess of the authority granted under the
Act. Walko Corp. v. Burger Chef Sys., Inc., 554 F.2d 1165, 1168 n.29
(D.C. Cir. 1977). Where rules fall within the scope of the Act, subject
to its limitations, they have the force of law, and the court is not free
to ignore their interpretation of a jurisdictional requirement. See In re
Sealed Case (Bowles), 624 F.3d 482, 486 (D.C. Cir. 2010); Baker v.
United States, 670 F.3d 448, 457–58 (3d Cir. 2012).
Two rules are relevant to Hentif’s case in determining the
meaning of “entry” under § 2107, and neither we nor the parties
suggest that either rule exceeds the scope of the Rules Enabling Act.
Federal Rule of Appellate Procedure 4 provides, in relevant part, that
“[t]he notice of appeal may be filed by any party within 60 days after
entry of the judgment or order appealed from if one of the parties is
. . . the United States.” FED. R. APP. P. 4(a)(1)(B)(i). It also
provides that when a separate document is not required under Federal
Rule of Civil Procedure 58(a), “[a] judgment or order is entered for
purposes of this Rule 4(a) . . . when the judgment or order is entered
in the civil docket under Federal Rule of Civil Procedure 79(a).”
FED. R. APP. P. 4(a)(7)(A)(i). A motion to reconsider pursuant to
Rule 59 does not require a separate document, see FED. R. CIV. P.
58(a)(4).
Rule 79(a)(3) defines the “Contents of Entries”:
Each entry must briefly show the nature of the paper filed or
writ issued, the substance of each proof of service or other
return, and the substance and date of entry of each order and
judgment. When a jury trial has been properly demanded or
ordered, the clerk must enter the word “jury” in the docket.
The July 27, 2012 posting, on its face, appears to satisfy each of these
requirements. The posting indicated the nature of the paper filed, a
classified memorandum and order, and the substance and date of the
order, that the district court had denied the motion for reconsideration
on July 26, 2012. It stated the date of entry: July 27, 2012. It also
6
appears to meet other requirements of Rule 79(a).1 Hentif’s case was
assigned a case file number that was noted on the first page of the
docket and in the attachment to the first entry, the “PETITION for
Writ of Habeas Corpus,” and the memorandum and order denying
reconsideration was marked with that file number. Notice of issuance
of the classified memorandum and order denying reconsideration was
posted chronologically in the docket.
Hentif’s contentions that the posting of July 27 was inadequate
or too incomplete to constitute “the entry” under § 2107 are
unpersuasive. Viewed simply as a matter of the plain meaning (i.e.,
the “definitional possibilities”) of “entry,” the July 27 posting made
a record of what had happened in the district court to his motion for
reconsideration. Viewed in the context of the rules of procedure, the
1
Rule 79(a)(1) & (2) provides:
(a) Civil Docket.
(1) In General. The clerk must keep a record known
as the “civil docket” in the form and manner
prescribed by the Director of the Administrative
Office of the United States Courts with the approval
of the Judicial Conference of the United States. The
clerk must enter each civil action in the docket.
Actions must be assigned consecutive file numbers,
which must be noted in the docket where the first
entry of the action is made.
(2) Items to be Entered. The following items must be
marked with the file number and entered
chronologically in the docket:
(A) papers filed with the clerk;
(B) process issued, and proofs of service or
other returns showing execution; and
(C) appearances, orders, verdicts, and
judgments.
7
July 27 posting notified him of the district court’s issuance of the
classified memorandum and order denying his motion and of the entry
date.
Hentif nonetheless maintains that the caption and capitalization
of the “NOTICE” in the July 27 posting did not convey that it was an
entry of an order. He relies principally on two Rule 58 cases where
the caption was relevant to whether a separate order had been entered.
In the first, United States v. Johnson, 254 F.3d 279 (D.C. Cir. 2001),
the court held that the separate document requirement was not met
where the posting referred to a single “Memorandum and Order” and
there was “no separate entry for an ‘Order.’” Id. at 286. The caption
was relevant in Johnson because it confirmed that one joint document,
not two separate documents, had been posted on the docket. By
contrast, the July 27 caption refers to a “NOTICE that the Court . . .
issued a classified memorandum and order denying” Hentif’s motion,
which indicates that the relevant document (since the separate
document requirement did not apply to Hentif’s Rule 59 motion) for
“the entry” is the “classified memorandum and order.” The posting
conveyed that the district court had reached its decision to deny
Hentif’s motion and that his cleared counsel could view the district
court’s reasoning in its classified form; the remaining step, redaction
of the classified memorandum and order, was to be performed by the
Executive Branch. See In re Guantanamo Bay Detainee Litigation,
577 F. Supp. 2d 143, 146 (Part I.B.9) (D.D.C. 2008). In the
meantime, cleared counsel could read the classified memorandum and
order at a secured site near the courthouse. See Appellee’s Br. 5–6.
In this regard there is no difference between the July 27, 2012
“NOTICE” of issuance and the August 1, 2011 “NOTICE OF
FILING” of the classified memorandum opinion denying Hentif’s
habeas petition, which Hentif timely moved to reconsider before the
redacted opinion became available. In the second case, Hollywood v.
City of Santa Maria, 886 F.2d 1228, 1230–32 (9th Cir. 1989), an entry
captioned as an “ORD.” qualified as the entry of a separate order.
Neither case addressed whether a “NOTICE” that the district court has
“issued a classified memorandum and order” would qualify as the
entry of an order where the separate document requirement did not
apply. Even if these Rule 58 cases treated the caption as indicative of
8
the nature of the entry, neither court suggested that the capitalized text
at the beginning of the entry is determinative in non-Rule 58 cases.
Hentif also maintains the July 27 posting was incomplete under
Rule 79(b), because there was neither a docket number nor hyperlink
to the classified memorandum and order indicating that the clerk’s
office had physical possession of it. Appellate Rule 4(a)(7) refers only
to Rule 79(a) in defining “entry.” Hence, the requirements of Rule
79(b) are not relevant. Even if Rule 79(b) is read to inform the
interpretation of Rule 79(a), the absence of the hyperlink is a
necessary accommodation of the classified nature of the memorandum
and order, and its absence alone is insufficient to demonstrate the clerk
of the district court failed to “keep a copy” or “mark” the
memorandum and order as Rule 79(a)(2) requires. Although the
September 1, 2011 notice of filing of the opinion denying Hentif’s
habeas petition included a hyperlink, it led only to a notice that the
opinion was classified and would become available upon redaction;
the July 27 posting provided the same notice without a hyperlink.
Although this court is hardly averse to construing statutes or rules
to protect the right of appeal, see St. Marks Place Hous. Co., Inc. v. v.
U.S. Dep’t of Hous. & Urban Dev., 610 F.3d 75, 81 (D.C. Cir. 2010),
Spann v. Colonial Village, Inc., 899 F.2d 24, 32 (D.C. Cir. 1990), the
two postings in Hentif’s case, on July 27 and August 10, are not
misleading, and treating the July 27 posting as “the entry” would not
result in unnecessary litigation delay. In St. Marks Place, 610 F.3d at
79, the posted order stated: “It is further ORDERED that this Order
shall not be deemed a final Order subject to appeal until the court has
issued its Memorandum Opinion.” This created an obvious ambiguity
about which of two orders triggered the running of the time for appeal
because the text of the order first posted on the docket was
inconsistent with the limitation on this court’s jurisdiction under 28
U.S.C. § 1291 to “final decisions of the district courts.” Id. at 80–81.
In Spann, 899 F.2d at 31–32, which involved the separate document
requirement of Rule 58, dismissing the appeal as premature would
have needlessly delayed the litigation by requiring a return to the
district court to obtain a final judgment in a separate document and
refiling an appeal. Similarly, Hentif’s reliance on Allen v. Horinek,
827 F.2d 672, 673 (10th Cir. 1987), is misplaced because a summary
9
on the docket of the district court’s ruling from the bench was
accompanied by a statement that an order would follow and held,
therefore, not to start the time for appeal. Here, the July 27 posting
established that a classified memorandum and order had been issued
by the district court on July 26, 2012 and was available to cleared
counsel the following day; it did not indicate that the district court
would produce an additional document, only that the redacted version
would be docketed when the Executive Branch completed its redaction
of classified information.
To the extent Hentif suggests this court has latitude to read the
word “entry” to shelter the right to appeal, that requirement, unlike
Rule 58(a), is in the statute and this court cannot construe “entry” so
narrowly as to exclude a posting that complied with the ordinary
meaning of the word and Rule 79(a)(3)’s description of the content of
“entries.” See In re Jones, 670 F.3d 265, 267 (D.C. Cir. 2012). The
July 27 posting informed parties without equivocation that the district
court “regards the case as closed and intends that no further action be
taken [by it],” and that “the time to appeal has commenced to run.”
Ellender v. Schweiker, 781 F.2d 314, 317 (2d Cir. 1986). It comported
with the plain meaning of “entry” because it made a record of the
relevant court document, and, consistent with Rule 79(a), that record
conveyed the necessary information to Hentif to be able to decide
whether to appeal.
Hentif’s reliance on statements by staff in the Clerk’s Office of
this court also cannot affect the conclusion that the July 27 posting
was “the entry” that triggered the sixty-day period. In Bowles, 551
U.S. at 213, the Supreme Court resolved this question in holding that
it has “no authority to create equitable exceptions to jurisdictional
requirements.” Even before Bowles, this court had limited the “unique
circumstances” exception to circumstances “where a party who could
have filed a timely notice of appeal is lulled into missing the deadline
by a formal court order or ruling.” Moore v. S. Carolina Labor Bd.,
100 F.3d 162, 162 (D.C. Cir. 1996); the statements of clerk’s office
staff lack this level of formality. And unlike in St. Marks Place, 610
F.3d at 81, which took into account appellate counsel’s reliance on
language in a docketed order that “expressly den[ied] [its] own
10
finality,” the July 27 docket posting did not “expressly deny” either its
finality or that it was an “entry” for purposes of 28 U.S.C. § 2107(a).
The most concerning aspect of Hentif’s objection to treating the
July 27 posting as “the entry” that triggered the sixty-day period to
appeal stems from the classified nature of the memorandum and order
denying reconsideration. To be able to decide whether to appeal, a
party would usually need to know more than that the district court has
denied his motion for reconsideration. See generally Roe v. Flores
Ortega, 528 U.S. at 489 (Souter, J., concurring in part and dissenting
in part). This court noted a comparable concern in Sealed Case
(Bowles), 624 F.3d at 484, regarding sealed documents not entered on
the district court docket, suggesting ad hoc procedures were
inadequate to ensure timely notice of orders and judgments, see id. at
489. The problem is exacerbated with classified memoranda and
orders if cleared counsel is not able to advise the client regarding
whether an appeal is warranted because the relevant analysis is
classified and counsel cannot determine until a redacted version is
released what may be discussed with the client, who does not have a
security clearance to examine classified materials. See Appellant’s Br.
40–41 (citing ABA MODEL RULES OF PROF’L CONDUCT R. 1.2 & 1.4
(2012)). But that is not the situation in Hentif’s case.
Even before the redacted memorandum and order denying the
motion for reconsideration was released, Hentif had the necessary
information to decide whether to appeal the denials of his habeas
petition and his motion for reconsideration. The redacted version of
the opinion denying his habeas petition was released before the
district court denied his motion for reconsideration. Many of the
redactions in that opinion related to names and places that did not
obscure the district court’s reasoning. Although several paragraphs
were redacted, the district court’s reasoning was nonetheless evident.
From the July 27 docket posting, counsel could inform Hentif that the
district court had denied reconsideration and that consequently the
analysis in the redacted opinion denying his habeas petition was
unchanged. The record does not indicate that Hentif was unaware, at
least through counsel, of the new evidence ground for his classified
motion for reconsideration, even if he did not know the details set
forth in the classified material. As of July 27, counsel could also
11
inform Hentif that the new evidence argument had failed.
Additionally, his counsel acknowledged that they could gain access
to the classified memorandum and order as of July 27 at a secure
location near Washington, D.C., to assess the likely success of an
appeal, even if counsel could not discuss the classified memorandum
and order with Hentif. See In re Guantanamo Bay Detainee
Litigation, 577 F. Supp. 2d at 148 (Part 1.D). Under these
circumstances, the July 27 posting provided Hentif with the
information required by Rule 79(a), and that information was
sufficient to enable him to make an intelligent decision about whether
to appeal, notwithstanding his lack of access to classified information.
Hentif’s counsel, in turn, could fulfill their ethical obligation to
advise their uncleared client. See Appellant’s Br. 40–41 (citing
MODEL RULES R. 1.2 & 1.4). By August 10, more than thirty days
before Hentif’s notice of appeal was due to be filed, counsel could
speak more freely with Hentif about the reasons for denial of
reconsideration given the release of the redacted memorandum and
order. And, as the government notes, counsel could have moved for
an extension of time for good cause, which if granted would have
extended the time to file an appeal by up to 30 days. See FED. R.
APP. P. 4(a)(5)(A)-(C). Or, if counsel had been concerned prior to
August 10 that the redacted memorandum and opinion denying
reconsideration might not be released in time to appeal, counsel could
have filed a protective notice of appeal. See, e.g., NextWave Pers.
Commc’ns, Inc. v. FCC, 254 F.3d 130, 139 (D.C. Cir. 2001).
Accordingly, we hold that the July 27 posting was “the entry”
under 28 U.S.C. § 2107 that triggered the sixty-day period to file a
notice of appeal, and because Hentif’s notice of appeal is untimely,
this court lacks jurisdiction and we must dismiss the appeal.