Hentif v. Obama, 12–5314.

Decision Date05 November 2013
Docket NumberNo. 12–5314.,12–5314.
Citation733 F.3d 1243
PartiesFadhel 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.
CourtU.S. Court of Appeals — District of Columbia Circuit

OPINION TEXT STARTS HERE

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. 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, 127 S.Ct. 2360, 168 L.Ed.2d 96 (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, 120 S.Ct. 1029, 145 L.Ed.2d 985 (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 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 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, 127 S.Ct. 2360.

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, 124 S.Ct. 1756, 158 L.Ed.2d 529 (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 DictionaryYYY (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, 112 S.Ct. 570, 116 L.Ed.2d 578 (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, 61 S.Ct. 422, 85 L.Ed. 479 (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 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, seeFed.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 memorandumand 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 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...

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